On December 1 the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization. At issue is the constitutionality of a Mississippi law that bans abortion after 15 weeks of pregnancy. Judging by the media reaction, things did not go well for the pro-choice side. "The Supreme Court Seems Poised to Overturn Roe v. Wade," reads one Bloomberg headline. "'Roe' is dead. The Roberts Court’s ‘stench’ will live forever," reads the title of a Washington Post column. The headline of another Washington Post article puts it this way: "The question is not whether ‘Roe v. Wade’ is overturned—but how." Pro-lifers hope so.
I remain unconvinced. It’s never a good idea to infer a final ruling from the content of oral argument. In March 2012 everyone walked away from arguments in NFIB v. Sebelius, judging the constitutionality of Obamacare, assuming that the health care law was doomed. They underestimated Chief Justice John Roberts’s creativity. The same thing could happen in Dobbs: Roberts may use his smarts and guile to persuade other Republican appointees that the Mississippi law can stand without overturning the right to an abortion in Roe. Such a ruling would be illogical. It would be a jurisprudential mess. It would further aggrandize the Court’s power to decide when and under what circumstances abortion is legal. It would look, in other words, like plenty of other Supreme Court decisions.
Whatever happens, I find I cannot escape the sense that America has reached an impasse, that it has arrived at a moment of transition, and not just on the matter of abortion. Whether one looks at politics, economics, or the world, one sees a realignment of forces, a shuffling of players off and on the stage, to prepare for the next act in the drama. The Trump presidency seems less like the harbinger of a new beginning than a spectacular climax to a historical epoch. If so, we are living through a sort of denouement, a working through of conflicts left unresolved. "It feels like the order we have all taken for granted since the end of the Cold War is badly decaying, and has gotten so fragile that it might well shatter soon," wrote Damir Marusic of Wisdom of Crowds last month. Question is: What replaces it?
If the Court does overrule Roe next summer, America will have entered uncharted territory. Many states will ban abortion immediately. Others will legalize it for the duration of a pregnancy. Still others will restrict and limit the practice. Abortion will be a matter for legislatures—including the U.S. Congress. Both Democrats and Republicans believe that abortion would become a major issue in next year’s midterm campaign, with unforeseeable consequences. Would a pro-choice backlash help Democrats? Perhaps. Then again, some of us thought that Texas’s fetal heartbeat law might help Democrats in Virginia and New Jersey. That didn’t happen.
Conversely, if the Court does preserve Roe, many conservatives and Republicans fear a pro-life backlash directed at the GOP infrastructure and conservative legal movement. No less an authority than former attorney general Ed Meese wrote in the Washington Post that the "success" of constitutional originalism depends on the Court’s ruling in Dobbs. Tension already is high within the conservative legal movement over former president Donald Trump, his attempt to remain in office, and the intellectual challenges from "common-good" constitutionalists and from advocates of judicial "engagement" over "restraint." A disappointing ruling may not only deflate Republican enthusiasm, but also turn grassroots conservatives in more radical directions.
Either way, our constitutional system and its parties, ideologies, and politics will look different from before. And this change will happen concurrently with a transition in leadership. As of this writing, 19 House Democrats have announced their retirements. More will follow. It is widely expected that the 81-year-old Nancy Pelosi will retire after the midterm election, even if Democrats somehow keep the House of Representatives. Should we really expect the 82-year-old majority leader and 81-year-old majority whip to remain in their jobs? The belief that the 79-year-old President Joe Biden won’t run for reelection in 2024 is so pervasive that the White House scrambles desperately to calm Democratic nerves. For a party that maintains the allegiance of young people, the Democratic leadership class is disturbingly old. It will have to give up power. And the Democrats waiting in the wings are not what you’d call inspiring.
As these generational fights play out, both the Democratic and Republican parties face the internal challenges of their respective countercultures. The woke neo-socialist left and the national populist right disrupt and polarize, complicating the chances that the electorate will arrive at a non-crazy, common-sense politics of moderate reform and civil peace. The mindless controversies over outlandish personalities, the endless and sophomoric exchanges of social media call-out culture, distract attention from the new issues in political economy that ought to be the basis of policy discussion.
And these issues really are new. The air is so thick with neologisms that I barely can keep up: SPACs, DeFi, NFTs, BTC. It would be foolish to expect government to understand these innovations in finance any better than the rest of us. Meanwhile, millions of Americans have quit their jobs during the recovery. Inflation cuts into earnings. The political class has signed up the developed world for an "energy transition" whose costs dwarf potential benefits.
Congress is nowhere close to figuring out how to deal with Facebook, Amazon, Apple, and Google. And AI and quantum computing are coming down the pike. One doesn’t have to go the full Andrew Yang to recognize that the worlds of work, saving, investment, production, and trade look much different than they did just a few years ago. The problem isn’t identifying the change. It’s thinking about the change in constructive and original ways that promote human flourishing in the valued places of family, church, neighborhood, and vocation. There’s been work done in this space. But it hasn’t received the attention it deserves. Why? Because the loudmouths, grifters, cranks, and conspiracists drown it out.
Democracies can muddle through political and economic disruption. Foreign policy is different. The prospect of catastrophic miscalculation is real. President Biden’s foolish and botched withdrawal from Afghanistan looks more and more like a curtain-call for the post-Cold War era of American global leadership. It ought to be obvious that his retreat failed to improve American security. Russia and China have become more aggressive in recent months. Iran has accelerated its nuclear program. Belarus aimed its migration weapon at Poland. The Balkans fell back into bad and deadly habits.
China builds up its nuclear weapons cache as it sails a submarine through the Taiwan Strait. Russia shoots down a satellite as it builds up forces on the border of Ukraine. Vladimir Putin’s recent comments about Russia’s strong relationship with China are the most disturbing and underreported aspect of rising tensions in Eastern Europe. Putin and Xi Jinping seem to have assessed that America has become so decrepit, so inward-looking, so guilt-ridden and risk-averse that the moment has arrived to make the world safe for autocracy. Biden’s response is weak sauce. Holding a summit of democracies may be worthwhile. But it certainly is not a deterrent.
From the Court to Crimea, the past week offered glimpses of the different world we soon will be inhabiting. Not all the images are comforting. They remind us to temper our expectations, avoid rash judgments, and be modest in our presumptions. Above all, they remind us to think seriously about how best to preserve our traditions of freedom in these strange and darkening times.
Published under: Joe Biden , Roe v. Wade , Supreme Court