Democrats Put to the Test
Furthermore, the vote on Kavanaugh will put Senate Democrats to the test. They know that abortion rights, a non-negotiable commitment for their party, are likely at stake. They are also under pressure from their party’s activist base to resist President Trump in every possible way. But if the vote to confirm Kavanaugh is along party lines, then the myth that the judiciary is insulated from politics will be shattered for good. That myth still matters to Democrats because, even though no conservative has believed it since Robert Bork’s nomination was shot down some thirty years ago, the legitimacy of progressive social gains, including Roe itself, depends on the idea of the Supreme Court as the conscience of the whole nation.
To admit that Supreme Court decisions are not more sacrosanct than, say, Obamacare or the Iran Deal would jeopardize the foundations upon which the modern Democratic Party stands. This is because the Democrats are the party of an administrative elite backed by shock troops drawn from a variety of identity groups. However, that party still attempts to appeal to the average white voter who remains in the majority in almost every state. Powerful myths are needed to fuse these elements together as one American whole, and Democrats rely upon the prestige that a certain elite consensus held among both parties in the late twentieth century. It was a consensus that produced Roe on a Republican-majority Supreme Court and later led the Republican Anthony Kennedy to write in Planned Parenthood v. Casey, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Republicans today don’t believe that, but it is, in effect, the formula that Democrats still employ to rationalize their coalition—to claim that it represents the self-defining rural Iowan as much as the self-defining identity-politics activist.
Roe is almost certainly doomed whatever the Democrats do. If Kavanaugh doesn’t become the swing vote in the next big abortion-rights case to come before the court, then Ginsburg’s or Breyer’s replacement will. There simply is no legal doctrine among Federalist Society lawyers that would sustain the 1973 ruling or its sequels. Or if there is such a doctrine, then it is so much in the minority among Federalist Society-vetted judges that it is unlikely any adherent will find his or her way onto the Supreme Court if Trump is making the appointment. This is so despite what overturning Roe might mean for the GOP’s electoral coalition. The Republican Party is dependent on its own myths, after all, and it cannot afford to dispel them even if they threaten to become politically inconvenient. The long-term ramifications of making abortion a fully political question rather than a judicial one might lead to the reconfiguration of both parties. But be that as it may, the GOP and the conservative movement on which it depends can’t turn back now without suffering an equally dramatic disruption.
In his Supreme Court picks, no less than in his trade policy and attitude toward America’s commitments abroad, Donald Trump is shaping up to be an epoch-defining leader. This is a source of horror to progressives and humiliation to NeverTrump nostalgists for the GOP of old. For conservatives, however, it means promises fulfilled and a new beginning, one full of possibilities as well as risks.
Daniel McCarthy is the editor of Modern Age: A Conservative Review . He is also the editor at large of The American Conservative . His writing has appeared in the New York Times, USA Today, The Spectator, Reason and many other publications.
Image: Supreme Court nominee Judge Brett Kavanaugh speaks in the East Room of the White House in Washington, U.S., July 9, 2018. REUTERS/Jim Bourg