Live by SCOTUS, Die by SCOTUS

Oh, to be invited to the next Federalist Society gala. The revelry will be unmatched, far out-debauching any of the CPAC underage Gaylord room meetups of legend. Dom Pérignon will flow like Inga Falls. It will be a bacchanal of the bar with a nolle prosequi clause—a real partie uncivile. Some roisterer might get deep in his flutes and even reinstate Rudy Giuliani’s law license.

Why will this DC bash be a more fun, more liquor-soaked shindy than any random Thursday water-hole meetup of Daily Beast journo-scolds?

Because victory. Sweet, sweet jeroboam-chugging victory.

The Federalist Society just had itself a coup of the century. Not only has the judicial pressure group reshaped the Supreme Court in its conservative ideological image, but it finally harpooned its white whale: overturning Roe v. Wade.

After some fits and starts, the Roberts Era officially began with knocking the beloved liberal precedent off of SCOTUS’s Doric columns. But FedSoc wasn’t tired of winning yet. The day before felling Roe, the Court also ruled unconstitutional New York’s concealed-carry restrictions. A two-day, two-for-one right-wing judicial blowout! And right before the Fourth of July, no less. USA! USA! USA!

Then, cue liberal outrage! From Albany to Albuquerque, millions of progressive voices suddenly cried out in terror. Help us, the ghost of Ruth Bader Ginsburg, you’re our only hope! (Oh, wait.) But the worst was yet to come: a president not interested or able to push back against the high court. An astromech droid-delivered holovideo imploring Joe Biden to take action would only fall on deaf ears—either because the President was inept or his Phronak was on the fritz.

In a new CNN report, Biden’s unofficial biographer Edward-Isaac Dovere gives an inside account of a White House caught behind the eight ball. “Top Democrats complain the President isn’t acting with—or perhaps is even capable of—the urgency the moment demands,” Dovere relays. What exactly is Biden doing in the wake of Roe’s reversal? We’re told some executive actions are in the mail and we should expect them in six to eight weeks. After all, the USPS can’t help losing documents in the few blocks between the West Wing and the Justice Department. The President also held a hastily put together chin wag with blue-state governors, which was sparsely attended, even on Zoom. Other than that? Biden’s holding a bushel of political goose eggs.

I can grok the frustration among the left. Biden has been a professional politician since pterosaurs graced our skies. The entire country got a sneak preview of how Dobbs would play out six weeks ago. Grimy pro-abortion activists are probably still camped outside Brett Kavanaugh’s house, smogging up the air with their lack of bathing. The White House should have been prepped and ready, with hordes of angry lefties and pallets of bricks U-Hauled into the center of all major cities. (Kidding on that last part, humorless censors!) Instead, junior staffers held a teleconference with celebrities and social media stars. The best counterpunch offered was TikTok clips of Biden speeches.

That’s the kind of professional service 81 million votes buys.

Dovere’s dispatch isn’t the only critical cup of tea in town. “Democrats grow impatient with Biden” reports The Washington Post. The prep-school clique zine Politico Playbook ran this update: “Dems wonder if Biden can rise to moment”. White House Chief of Tweets Ronald Klain appears to be fouling his own nest by planting negative news stories to sink his boss and seesaw his own standing.

So what’s going on? Why are liberals being so fatalistic about their “transformative” president? Didn’t the left champion the energetic executive? Why isn’t Biden, like his predecessor, wielding the pen and phone to parry the assault on his agenda?

To paraphrase the Pantokrator: live by the Supreme Court, die by the Supreme Court.

The twentieth century was without a doubt American liberalism’s finest hundred years. From Woodrow Wilson’s mass mobilization of the war state, to the New Deal, to the Civil Rights Act, to even Ronald Reagan’s pumping up the Pentagon’s budget, the American right was thoroughly trounced to the point of requiring emergency Medicaid coverage—even complaining of “EVIL SOCIALISM!” while getting its wounds sutured. Along the way, the Supreme Court aided and abetted the country’s leftist slide. “Intellectually I knew, but viscerally did not realize, just how much of America’s liberalism over the last half century depended on the single institution of the Supreme Court,” commented oblivious economist Noah Smith. He cited landmark cases legalizing interracial marriage, affirmative action, buggering, gay marriage, and, of course, abortion. “You can hate on SCOTUS all you want,” Smith says, clearly referring to irate tankies who either want the court crumbled or packed with Kendi clones, “but the fact is that without that institution, this would have been a lot less liberal of a country from 1980 onward.”

Smith gets his estimated year wrong—by about three decades. Since Brown v Board of Education, the Supreme Court, helmed by Earl Warren, has been an agency of enabling Washington’s hand in all matters public and private, national and local. Without the Warren Court, decentralized federalism would be a much more robust force. Instead, many Americans have been conditioned to appeal to our nine legal clerics in contentious political fights.

But now, thanks to the unflagging effort of many right-of-center pressure groups, and a few small pockets of Pennsylvania, Michigan, and Wisconsin that went red in 2016, the Supreme bench is staffed with a conservative majority. That means no more judicial rubber-stamping liberal lawsuits. Moreover, the Court is training its judicial-reviewing sights on oppressive regulations in blue states. And the left is powerless to stop the power-swap.

Since the Progressive Era, the American left has relied on two of our government’s three branches to impose its will on the country. Authority was conceded to the executive branch to have wide latitude to enforce laws in a manner that basically amounted to legislating. The courts were used to push an American acquis communautaire, striking any laws that didn’t comport with an overall liberal dispensation.

Congress? Elections? Democracy? Pssssshhhh. Who needs ‘em? Marx didn’t trust the lumpenprole anyway. Better to put the future in the hands of some Office of the Comptroller of the Currency drone instead of those boxy suited mannequins who kiss babies at state fairs every two years. For added measure, better backstop aggressive liberal governance with a left-inclined final-say court.

Now it’s Marbury’s revenge for the right. The new Supreme Court is pressing the brakes on seventy years of jurisprudence—and throwing the whole vehicle in reverse. Issues like abortion and environmental protection are being returned to the legislative branch for elected politicians to puzzle out. The devolution of liberalism’s judicial enforcement is based upon a dusty old principle: representative democracy. As Angelo Codevilla put it, “legitimate rule must be based on persuasion rather than force.”

The left thought it had established an unbreachable palisade within the Supreme Court. The right, despite its own maladroit bumbling in political matters, managed to sneak in its own platoon through the rear service entrance—or really, by steadily voting for Senate Republicans despite years of policy perfidy.

The Trump Triad on the Court ensures the Roberts Era isn’t ending for at least a decade. That is, if Clarence Thomas keeps taking his Omega-3 and Samuel Alito avoids tachycardia-inducing amusement park rides.

The left’s reliance on the Supreme Court left it open to a conservative hostile takeover. The danger of concentrated power is, as always, that it’s eventually wielded against you.

As for the Federalist Society, maybe its party planners can send a bottle of Perrier-Jouët to the American Constitution Society. Grace in victory is just as important as any Lord Acton axiom on power.

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Taylor Lewis

Taylor Lewis writes from Virginia.

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