Beneath the Surface

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Continuing with Dana Milbank’s The Destructionists, this post discusses the remaining two of the anti-democratic impulses he associates with the Republican Party in recent decades.

Sabotaging institutions and norms

Here again, Milbank attributes a leading role to House Speaker Newt Gingrich in the 1990s. “The slash-and-burn politics he brought to the Capitol made it ungovernable, and the zealots he brought into the Republican Party had no wish to govern. It has been that way ever since.”

All presidents face challenges in getting their legislative agendas adopted, especially if the opposition party holds a majority in one or both houses of Congress. Republicans like Richard Nixon and Ronald Reagan certainly had that problem. But President Clinton, and later Obama, encountered an unprecedented level of resistance. Presidential legislative victories dropped to the lowest levels since recordkeeping began in 1953. Strict party-line voting soared, while the number of actual laws passed plummeted. Congress could no longer even pass an annual budget:

Since the modern budgeting practice was created in 1974, Congress had managed to pass a budget every year—until Gingrich. In 1998, Republicans couldn’t agree on a budget, a new failure of government that would be repeated ten times in the years that followed.

Another disturbing development was that when Republicans couldn’t get their way, they threatened to shut down the government, or actually did so. They didn’t seem to care very much whether anything got done, as long as little the administration wanted got done.

Once Republicans gained control of Congress in 1995, they took steps to exclude Democrats from the legislative process. In the K-Street Project organized by Speaker Gingrich, along with House Majority Whip Tom DeLay and Republican activist Grover Norquist, lobbying firms seeking to influence legislation were expected to contribute to Republicans and hire Republicans. Milbank characterizes it as “a new incarnation of old-fashioned, pay-to-play politics” that “made corruption into a science.”

Gingrich’s successor, Dennis Hastert, proclaimed that he would allow no bill to come to a vote without the support of a majority of Republicans. That precluded the Democratic minority from passing any legislation with the help of moderate Republicans, thus strengthening the stranglehold of the Republican right on Congress. (Hastert later went to jail for banking violations, as a result of trying to cover up bank withdrawals he was using to pay hush money to victims of his sexual abuse.)

The 2000 presidential election was marred not only by the anomaly of having the Supreme Court stop a state recount and declare the winner, but also by irregularities that could easily have affected Florida’s razor-thin vote margin:

The U.S. Commission on Civil Rights concluded that Florida officials, led by the president’s brother, Governor Jeb Bush, were “grossly derelict” in conducting the election. The commission concluded that “countless” eligible voters “were wrongfully purged from the voter registration rolls, turned away from the polls, and by various other means prevented from exercising the franchise…”

[T]he Republicans had learned from Florida an insidious, antidemocratic lesson: with the Supreme Court in its corner, and with the ability to suppress the opposition’s vote in GOP-run states, Republicans didn’t necessarily need a majority to win. All they had to do was howl about election fraud.

In many states, Democratic voters are heavily concentrated in highly urbanized areas. That makes it rather easy for a Republican-controlled legislature to draw voting district boundaries in such a way as to give Democrats a smaller share of legislative or Congressional seats than their share of voters. A state government can also use the location of polling places to produce longer lines in some locations than others. Milbank describes the scheme concocted by Karl Rove and Tom DeLay to replace seven House Democrats with Republicans. First DeLay collected large corporate donations that were supposedly illegal under Texas law, channeling them to Texas candidates by way of the Republican National Committee to disguise their true origin. Enough of his candidates won to take control of the Texas legislature. Then he got Governor Rick Perry to call special legislative sessions to immediately redistrict the state, something normally done only every ten years. Then he persuaded the lieutenant governor to suspend the normal requirement of a two-thirds vote in the Texas Senate, so that the redistricting could pass by a simple majority. The scheme worked, although DeLay was later sentenced to three years in prison for money laundering. But no matter; Republicans on the appeals court overturned his conviction.

After the conservative majority on the U.S. Supreme Court substantially weakened the Voting Rights Act in 2013, Texas was one state that immediately passed more restrictive voting laws that impacted negatively on minority and Democratic voters.

Both major parties have resorted to gerrymandering and other unfair tactics in some places, but the Republicans have been the main beneficiaries. In the House of Representatives and in many state legislatures, they can win a majority of the seats without winning a majority of the actual votes.

During the Obama administration, Mitch McConnell routinely used the filibuster to block the President’s judicial appointments. Democrats eventually had to change the rules in order to get vacancies filled. When Obama nominated the moderate Merrick Garland for the Supreme Court, McConnell made up his own rule, that no such nominee could even be considered in an election year, thus holding open the vacancy from February 2016 until Obama left office in 2017. Later, with Trump in office and Republicans in control the Senate, he had no problem rushing to confirm Amy Coney Barrett eight days before the 2020 election. He had also decided that eliminating the filibuster for Supreme Court nominations was a good idea, making it easier for President Trump to appoint extreme conservatives. McConnell’s success in manipulating the rules is one big reason we have a judiciary far more conservative than the general population.

Perhaps the most alarming breach of democratic norms is the Republican flirtation with right-wing militias and other violence-prone groups. While they have grown in number since the 1990s, Republican leaders from Newt Gingrich to Donald Trump have refused to repudiate them. Threats of violence against Congressional Democrats increased after Congress passed Obamacare, and more recently after Congress certified the 2020 election as a Biden victory. Responsible Republicans who resisted Trump’s efforts to overturn the election were also at risk. The January 6 attack on the capitol was not entirely without precedent. During the dispute over the 2000 election, a mob stormed the offices of the Miami-Dade County election board and intimidated the board enough to halt the recount. The riot turned out to be led by Republican operatives flown in from Washington and funded by Karl Rove’s political operation. I have read elsewhere that one of the people taking credit for organizing the event was none other than Roger Stone! One more example of Trumpism before Trump.

Exploitation of racism and white supremacy

The expansion of civil rights to include historically disadvantaged groups is an obvious goal of a democratic society. Long before the recent period described by Milbank, the parties had split over this issue. The Democratic Party had risen above its Southern racist past and assumed a leading role in the Civil Rights Movement, while the GOP, originally the anti-slavery party, was moving more slowly. As the party believing in a more limited federal government, Republicans were more skeptical that government could do very much to address racial inequality. They wanted disadvantaged minorities to work their way out of poverty rather than rely on government assistance. They encouraged businesses and colleges to adopt racially neutral hiring and admissions standards, but did not want to impose any particular targets or timetables for achieving greater diversity.

A survey finding reported by Milbank dramatizes the difference in attitudes and the dilemma it poses. In 2020, 71 percent of white Republicans agreed with the statement, “It’s really a matter of some people not trying hard enough; if Blacks would only try harder, they could be just as well off as whites.” Only 13 percent of Democrats agreed. While Republicans might defend the statement as an affirmation of the traditional work ethic and the equal opportunity society, it also perpetuates the racist stereotype of lazy Blacks whose problems are their own fault. The line between complacency in the face of racial injustice and just plain racism is a fine one.

Republicans face both a moral and political dilemma. Should they broaden their appeal to disadvantaged groups by supporting programs that help them, like Obamacare? Or should they write off those segments of the electorate and double down on being the party of white people? For political operatives, it has been too often a question of whatever they think will get the most votes. One of Newt Gingrich’s campaign officials was quoted saying, “We went after every rural southern prejudice we could think of.” And early in George W. Bush’s presidency, his campaign coordinator Matthew Dowd persuaded Karl Rove that a highly motivated base was more important than a broad base. A great way to fire up white people is encouraging them to believe that undeserving minorities and immigrants are coming to take their jobs or tax dollars. Appealing to white fear is an effective but dangerous tactic. It can set off a downward spiral, where the most prejudiced voters turn out for your party, while those with more moderate views leave. The result is a base that becomes ever narrower and less rational.

The election of the country’s first (half-) Black president only increased the divide.

The parties had been realigning themselves according to race and racial attitudes for decades, but the Obama presidency, and the Trump-led racial backlash against it, dramatically accelerated the trend—drawing those with racial resentment into the Republican Party and repelling those who welcome a multiracial America.

The Tea Party movement brought together antigovernment Republicans and white nationalists particularly hostile to the new president. Fox News heavily promoted the rumor that Obama was not an American citizen. Glenn Beck said that Obama “has exposed himself as a guy, over and over and over again, who has a deep-seated hatred for white people or the white culture.”

Like Tim Miller, Milbank discusses the “autopsy” commissioned by the RNC after the 2012 election, which advised the party to broaden its base if it wanted to win future elections. Two developments the following year suggested that many leaders weren’t listening. The Republican-controlled House of Representatives refused even to debate a compromise immigration bill that had passed the Senate with a two-thirds majority. The bill contained a path to citizenship for some undocumented immigrants, but also increased spending on border security. The second development went to the heart of the democratic process, as Republicans withdrew their longstanding support of the 1965 Voting Rights Act.

The Voting Rights Act had gone a long way to reduce the racial disparity in voting. That was mainly due to the requirement that states with a history of voter suppression get approval from the Justice Department for any changes to their voting rules. In 2013, the conservative majority on the Supreme Court eliminated that requirement on the grounds that the data used to justify it were outdated. Despite the strong bipartisan support the bill had enjoyed in the past, Republicans now refused to support Democratic efforts to update and reauthorize the bill, leaving Republican-controlled state legislatures freer to enact restrictions that impacted negatively on Black voting.

Once again, Donald Trump only magnified trends that were already underway. He delighted the Republican base with his explicit attacks on immigrants as criminals and Black Lives Matter protesters as thugs, while at the same time embracing white supremacist insurrectionists as patriots.

After so many years of choosing power over principle, self-interest over country, Republican leaders had lost their way. They stood for nothing but gaining and holding power. Then, in 2015, along came a man who showed them a way to gain and hold power. They swallowed what was left of their integrity, and they followed him.

Milbank’s detailed account of politics in the last quarter century makes a pretty good case that the Republican Party’s commitment to democratic principles has been eroding for some time. But the questions I posed at the outset, “Why the Republican Party, and why in our particular era?” are still hanging out there not entirely answered. I will try to go a little deeper next time.

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The Destructivists

I turn now to The Destructivists: The Twenty-Five-Year Crack-Up of the Republican Party, by Washington Post writer Dana Milbank. Milbank concentrates on the period since 1992, when Bill Clinton won the presidency. That was a big political turning point, since Republicans had won the previous three presidential elections, and five of the last six. But from 1992 to 2020, Republicans won the popular vote in only one presidential election out of eight (2004), although they eked out two more electoral college victories, one with the help of the Supreme Court (Bush vs. Gore in 2000) and the other with the help of Russian hackers (Trump vs. H. Clinton in 2016). Republicans have remained competitive, but they no doubt miss the Reagan years when the national mood in general was more conservative.

Although Milbank acknowledges the polarization of American politics in this period, he does not take the easy route of just bemoaning uncivil or undemocratic behavior on both sides. His critique is much more pointed and provocative:

Much has been made of the “polarization” in American politics, and it’s true that moderates are a vanishing breed. But the problem isn’t polarization. The problem is that one of our two major political parties has ceased good-faith participation in the democratic process. Of course there are instances of violence, disinformation, racism, and corruption among Democrats and the political left, but the scale isn’t at all comparable…

I aim to show how extensively Republicans and their allied donors, media outlets, and interest groups have been pulling at the threads of democracy and of civil society for the last quarter century—making the current unraveling inevitable.

The threat to democracy is not imaginary or merely rhetorical. The same scale that the CIA uses to rank countries around the world can be used to show that the United States has slipped from a +10 (most democratic) to a +5 (only moderately democratic). A zero would be midway between democracy and autocracy, and a -10 would be completely autocratic.

Milbank regards Donald Trump as a latecomer to this story. He is merely an opportunist who “saw the direction the Republican Party was heading in and…reinvented himself to give Republicans what they wanted.”

Milbank identifies four different ways that Republicans have been undermining democracy since the 1990s:

…their war on truth, their growing exploitation of racism and white supremacy, their sabotage of the institutions and norms of government, and their dehumanizing of opponents and stoking of violence. In the process, they became the Destructionists: they destroyed truth, they destroyed decency, they destroyed patriotism, they destroyed national unity, they destroyed racial progress, they destroyed domestic stability, and they destroyed the world’s oldest democracy.

In this post, I’ll discuss two of these threats to democracy—the war on truth and the dehumanization of opponents.

The war on truth

During Bill Clinton’s first year in office, a deputy White House counsel named Vince Foster committed suicide. Although numerous investigations, including one by a bipartisan Senate committee, confirmed the suicide, the story that Foster had been murdered by the Clintons circulated widely. The proliferation of right-wing talk shows, with Rush Limbaugh’s radio show the most popular, fueled the rumor. Wealthy donors like billionaire Richard Mellon Scaife were also supporting the effort to dig up damaging information about the Clintons. Milbank sees the Vince Foster episode as a prototype for what was to come. “Republican leaders and allied media figures had discovered that if they embraced a fringe conspiracy theory, they could convince millions to believe a lie.”

Also funded by Scaife, a politician named Newt Gingrich rose to prominence and became Speaker when Republicans took over the House in 1995. He used the same technique of “proclaiming falsehoods with righteous certainty.” Not only did he promote the Vince Foster conspiracy from the House floor, but he had lied about his opponent in order to get elected to Congress in the first place, and was also known to lie about the provisions of bills that he opposed. He was also noted for his shameless hypocrisy, calling out Bill Clinton and other adversaries for their sexual misconduct, despite his own record of extramarital affairs.

The George W. Bush presidency was noted for the political machinations of Bush’s principal advisor, Karl Rove, a veteran of Republican dirty tricks from the Watergate era. His biographers described him as “American politics’ most talented, prolific and successful dissembler.” Candidates who ran against Bush experienced smear campaigns, including the heavily promoted rumor that John McCain had fathered an illegitimate black child and the trashing of John Kerry’s military career. The Bush administration’s most ambitious foreign policy venture, the Iraq War, was promoted with disinformation that Iraq had collaborated with al Qaeda in the 9/11 attacks, and that Iraq had weapons of mass destruction. Although many in the mainstream media failed to report the truth in a timely fashion, right-wing media led the way in promoting whatever fake news the administration disseminated. By this time, Fox News had come on the scene, and its viewers were “more likely than viewers of other networks to believe the falsehoods.”

The Obama administration’s signature legislative accomplishment, the Affordable Care Act, was almost derailed by Republican lies, notably the rumor started by Sarah Palin that government “death panels” would decide which of the elderly would be denied medical care. (What the bill actually called for was financial help for seniors to get counseling on end-of-life choices like hospice care, but Democrats had to scrap that provision because of the distortion, which PolitiFact designated the “Lie of the Year.”) Here are some other notable Republican contributions to the health insurance debate:

Obamacare, in Republicans’ telling, was “as destructive to personal and individual liberty as the Fugitive Slave Act of 1850” (New Hampshire state representative Bill O’Brien), “a racist tax” (Representative Ted Yoho of Texas), the “end of prosperity in America” (Glenn Beck), “the most dangerous piece of legislation ever passed” (Representative John Fleming of Louisiana), America’s “final death knell” (former senator Rick Santorum of Pennsylvania), and something from which “we will never recover” (Steve King) that “literally kills women, kills children, kills senior citizens” (Michele Bachmann) and means “you’re going to die sooner” (Tom Coburn).

Then there was the 2012 attack on the U.S. consulate in Benghazi, Libya, which Republicans and right-wing media blamed on Secretary of State Hillary Clinton, despite the consistent finding that security decisions had been made at lower levels. Hearing after hearing after hearing failed to substantiate the accusations. House majority leader Kevin McCarthy boasted: “Everybody thought Hillary Clinton was unbeatable, right? But we put together a Benghazi special committee, a select committee. What are her numbers today? Her numbers are dropping.” Apparently the political ends justified the dishonest means.

Perhaps the most dangerous form of Republican disinformation in these years has been denial of climate science and its forecasts of potentially disastrous climate change. The accumulating facts have forced many Republicans to moderate their views, but not yet to the point of actually supporting legislation to address the issue.

By the time Donald Trump ran for president in 2016, Republicans had already created a world of alternative facts to support the positions they were having trouble defending with more factual and rational arguments.

The triumph of disinformation had been a long time in the making. Since the Vince Foster “murder” in the 1990s, Republican leaders had been feeding their voters a steady diet of fabrications: Troopergate. Iraq’s weapons of mass destruction. Black helicopters. Death panels. Benghazi. Hillary Clinton’s brain damage. Birtherism. They, and their allies on talk radio, the web, and Fox News, had conditioned their supporters to disbelieve anything that came from the media, from scientists, from experts, from Democrats, and from the U.S. government.

Detailing all of Donald Trump’s lies would require another book, or more likely many books, and those books seem to be coming by the boatload. Several kinds of deception deserve special mention. The first is President Trump’s failure to take the pandemic seriously, which delayed the government’s response and discouraged his followers from getting vaccinated and wearing masks. Some medical researchers regard as many as 40% of American Covid deaths as preventable, with the most pro-Trump counties having the highest death rates. In Milbank’s eyes, that makes the GOP a “death cult.” The second is the pattern of lying to authorities conducting legitimate investigations, which led to criminal charges against associates Roger Stone, Michael Flynn, Paul Manafort and George Papadopoulos. Trump himself enjoyed presidential immunity against indictment despite the damning evidence of his obstruction in the Mueller Report, and he rewarded his cronies with presidential pardons. Of course, the biggest lie of all is that he won the 2020 election in a landslide. The fact that such a large portion of the party—leaders and followers alike—claim to believe that reveals how out of touch with reality the party has become.

Dehumanizing opponents

Milbank also traces the habit of dehumanizing the opposition back to the politics of the 1990s. In addition to having a troubled relationship with the truth in general, Newt Gingrich led the effort to demonize Democrats. His political action committee provided Republican candidates with a list of sixty-five words and phrases to be used when speaking of Democrats, including such labels as “anti-family, radical, incompetent, and anti-jobs.”

The George W. Bush administration—and Karl Rove in particular—tried to paint opponents of the War on Terror and Iraq War as traitors.

Barack Obama experienced many of the harshest attacks. The “birther” conspiracy theory claimed that he was not a legitimate president because he wasn’t really born in the United States. On Fox News, Glenn Beck often compared him to Adolph Hitler and claimed that the White House functioned like the Gestapo. House Speaker John Boehner, who retired after becoming frustrated with the right wing of his own party, later wrote that the party had been “radicalized by blind Obama hatred… Every second of every day since Barack Obama became president I was fighting one batshit idea after another.”

The incessant and increasingly strident attacks took their toll on the views of Republican voters. Milbank cites a Pew Research Center poll showing that the percentage of Republicans with a “very unfavorable” view of the Democratic Party rose from 21 percent to 58 percent between 1994 and 2016.

As MAGA supporters took over the party, the demonic portrayals only became more bizarre. Hillary Clinton was now said to be the leader of a child pornography ring that abused and murdered children. Trump supporter Alex Jones, who heavily promoted the theory on his InfoWars website, said, “When I think about all the children Hillary Clinton has personally murdered and chopped up and raped, I have zero fear standing up against her.”

My next post will deal with Milbank’s other two accusations: that Republicans have been sabotaging the institutions and norms of government and exploiting racism and white supremacy.

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Tim Miller. Why We Did It: A Travelogue from the Republican Road to Hell. New York: HarperCollins, 2022.

Dana Milbank. The Destructionists: The Twenty-Five-Year Crack-Up of the Republican Party. New York: Doubleday, 2022.

These two books are recent additions to the growing literature on the transformation of the Republican Party into the Party of Trump. One author is a Republican operative and the other a journalist, but both are alarmed by the implications of this development for American democracy.

Tim Miller’s book has a more psychological focus, exploring the personal motivations of Republicans who went along with the MAGA movement. Dana Milbank’s book is more historical, documenting key events in the party over recent decades. Both books agree that the party was already behaving badly well before 2016, and that Donald Trump benefited from a political environment that he couldn’t have created singlehandedly.

Although both books suggest some larger reasons for what they describe, such as the rise of new media platforms for disinformation, neither devotes as much space as I would like to the social trends and conditions that led a major party—and the Republican Party in particular—to stray so far from conventional democratic norms. I will have more to say about that in my final post on this topic.

Why We Did It

Miller’s Why We Did It is mainly about the “army of consultants, politicians, and media figures” who changed the character of their party just before and after Donald Trump rose to its leadership. His book has a confessional aspect, since he includes himself in his own critique, despite the fact that he ultimately drew the line at supporting Trump. He describes his work for America Rising, an organization he started in 2012 to conduct opposition research. In Miller’s typically colorful language, it was a “chop shop that would specialize in mercilessly investigating and then eviscerating Democratic candidates and causes.” He soon came to realize that some of the candidates he worked for were far worse than their opponents, but he rationalized it as “all ‘part of the Game’ or the ‘price of doing business’ or whatever else I needed to tell myself to justify doing terrible shit like working to elect racist, homophobic assholes…”

However, Miller also participated in the Republican “Autopsy” following Mitt Romney’s defeat in 2012. He supported its conclusions that the party ought to reject bigoted candidates, reach out to previously marginalized groups, and compromise on issues like immigration and criminal justice reform to appeal to more voters of color. He was not amused to see the rise of Donald Trump, who seemed to want to take the party in the opposite direction. He assumed leadership of a super Pac that tried but failed to stop Trump from getting the 2016 nomination. To his dismay, most of his friends and colleagues then got on the MAGA bandwagon.

Miller’s book is largely a typology of personal motivations and rationalizations people adopt to justify their political behavior. Here are some of his types:

• Compartmentalizers, which include Miller himself until he refused to support Trump, separate their political work from issues of personal integrity and principle.
• Gamers treat politics as a game, concentrating on “strategy, tactics, messaging, advertising, opposition research,” in short, winning. They give little thought to actually governing.
• Messiahs tell themselves that their good work can save the party and the nation from the worst impulses of the leader they work for.
• LOL Nothing Matters Republicans think that “if someone like Trump could win, than everything that everyone does in politics is meaningless,” so who cares?
• Little Mixes enjoy the self-importance of being close to the action, regardless of what is actually being accomplished.
• Demonizers and Tribalist Trolls believe that anything they can do for their side is justified by the evil of the other side.
• Strivers are motivated by blind ambition, doing whatever they have to do to rise in the party.

These motivations are hardly mutually exclusive. Miller describes how one of his personal friends had “almost the full package of Trump rationalizations”:

She has compartmentalized the bad, even when it comes to those she cares about. She has demonized the left and wants revenge against the cultural elite. She’s caught up in this big imaginary game and enjoys the LOLs. She’s wearing the orange crush team jersey. She loves being in the mix at Trump events. She has succumbed to inertia and doesn’t know what she would do if not Republican politics, so she can’t envision what a different, more fulfilling life for herself would look like.

But in her case, it is even more than all that. Caroline has been sucked in by the cult. She is obsessed with Trump and adores him, as incommodious as that may seem. She’s the masochistic follower who feels a compulsion to be tested, abused, and forced to prove they are deserving of the leader’s love over and over and over again.

Miller’s account has the advantage of relying on firsthand observation and interviews, so that he does a good job getting into the mindset of his subjects. One limitation of this approach is that the motivations he uncovers could apply to individuals under many different social and political circumstances. No doubt such types could be observed in just about any political party at any time. We still need to ask, why the Republican Party, and why in our particular era?

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I turn now from the constitutional interpretations framing the abortion debate to the politics of abortion. I will start with public opinion on abortion, but then connect the issue to a broader debate over democracy and political legitimacy.

Public opinion

Here I rely on the General Social Survey conducted by the National Opinion Research Center. Since the 1970s, it has included a standard set of questions asking under what conditions a pregnant woman should be able to obtain a legal abortion. Here are the conditions, along with the percentage answering Yes in 2021:

• The woman’s own health is seriously endangered by the pregnancy (89%)
• She became pregnant as a result of rape (83%)
• There is a strong chance of serious defect in the baby (77%)
• She is married and does not want any more children (57%)
• The family has a really low income and cannot afford any more children (56%)
• The woman is not married and does not want to marry the man (55%)
• The woman wants it for any reason (54%)

One reason why the abortion issue is so contentious is that support for it depends so heavily on the imagined circumstances. Over three-fourths of respondents want abortion to be legal in cases of endangered maternal health, rape, or serious birth defect. Far fewer—but still a small majority—would allow women to choose abortion under less extreme conditions.

Let’s further analyze opinions on the question of whether a woman should be able to have an abortion “for any reason,” where opinions are almost evenly divided. Here are the percentages answering Yes for various groups:

• Democrats (69%), Independents (51%), Republicans (35%)
• Ages 18-34 (63%), 35-49 (54%), 50-64 (54%), 65+ (52%)
• Highest degree: College+ (59%), High-school (51%), Less Than High School (54%)
• Female (56%), Male (52%)

Political party affiliation is a much better predictor of opinion than the other factors. The difference between women and men on this issue is pretty small. The distinctly liberal position of people under 35 has emerged only in the last few years, and suggests that further liberalization of opinion is likely going forward.

In the 1970s and 80s, the overall percentage of respondents answering Yes to the same question was under 40%, while now it is over 50%. This is probably related to a decline in Christian conservatism over the past several decades. The percentage of respondents classified as Protestant conservatives in the survey peaked at 35% in 1991, and was down to 20% by 2021. Over the same three decades, the percentage of Catholics declined from 27% to 22%.

An even more dramatic change of opinion has occurred with regard to same-sex marriage. Gallup recently reported that support for it has reached a new high of 77%. This is relevant to the debate over legal abortion, since the Supreme Court’s recognition of same-sex marriage in Obergefell v. Hodges was based on the same broad reading of the Fourteenth Amendment as Roe v. Wade. Americans are increasingly comfortable with the idea that the Constitution grants broad rights in intimate matters, which is why overturning Roe has come as such a shock.

Public opinion has also been turning against other prominent positions taken by the Republican Party. Only about a third of the country supported the Trump tax cuts of 2017, whose benefits went primarily to corporations and the wealthy. In contrast, President Obama’s signature legislation, the Affordable Care Act, now has majority support, recovering from the low of 37% approval when the Republicans ran against it in the 2014 midterms, according to Gallup. On another prominent issue, recent mass killings have highlighted the support for moderate gun-safety measures, such as universal background checks and bans on assault weapons, but the Republican Party is far more pro-gun than the general population.

Democracy and political legitimacy

I believe there is a connection between the unpopularity of many Republican positions and the party’s willingness to resort to undemocratic means to have its way. Tactics like disinformation campaigns and voter suppression are not signs of strength, but signs of weakness, and perhaps even desperation. After all, Republicans have lost the popular vote in seven out of the last eight presidential elections.

In my May 10 post on the politics of abortion, I mentioned the underhanded way that Senate Republicans went about getting more ultraconservatives onto the Supreme Court:

In 2016, Senate Majority Leader Mitch McConnell blocked the Senate from even considering President Obama’s last Supreme Court nominee, making up a rule that nominations shouldn’t be considered in an election year. In 2020, he reversed his position so that President Trump’s nominee could be rushed through several weeks before the election. These machinations gave Trump the most appointments in a single term since Reagan and created the most radically conservative Court in almost a century. Republican nominees also misled Senate moderates by expressing support for Roe as a precedent to be respected, then revealing their judicial radicalism once they were on the bench.

President Trump’s own position on abortion was rather slippery, since he had once been known for his pro-choice views. Knowing what we know about the man, I’m guessing that his flip-flop was less a matter of sincere moral conversion than political expediency, once he decided to run as a Republican. His entire relationship with Christian conservatives involved more than a little mutual hypocrisy, since he was willing to give them what they wanted as long as they voted for him, and they were willing to support him even if he flouted most moral standards of Christian behaviour. The photo-op in which Trump held up a Bible while standing in front of a church was a new low in political phoniness.

Donald Trump will probably go down in history as the front-runner for most illegitimate president of all time, given the role of the Russian disinformation campaign in his first election and his efforts to corrupt or overturn the second. But I believe that the descent of the party into dishonesty and authoritarianism is bigger than Trump, and threatens to continue with or without him. Consider the Republican initiatives in these areas:

• The use of wild claims of voter fraud—which is actually quite rare—to justify measures that make it harder for voters, especially poor people, to exercise their voting rights
• The rejection of a key feature of the Voting Rights Act by the Roberts court, and the refusal of Congressional Republicans to support a replacement that could meet the court’s objections (Texas Republicans just announced their commitment to abolishing the law entirely)
• The misuse of the Senate filibuster to avoid debating almost every measure proposed by Democrats
• The protection of partisan gerrymandering by conservatives on the Supreme Court
• Opposition to all campaign finance reform
• Proposals to give state legislatures the power to overturn state election results

We now have to take seriously the possibility that if the Republicans regained control of Congress, they might collaborate with their state legislators to decertify the election of the next Democratic president. If so, the Supreme Court probably wouldn’t come to the rescue. Let’s not forget that in 2000, the Republican 5-4 majority stopped the Florida recount and awarded the presidency to George W. Bush, without knowing whether he had actually won or not.

I’ve strayed rather far from the abortion issue. But my point is that if the Dobbs ruling is what the dissenting opinion says it is—a “pinched” reading of the Fourteenth Amendment that threatens to undermine personal rights—then it is another attack on a democratic institution. It is another way of curtailing democracy because one party doesn’t like the way democracy is going. A political party that keeps doing that deserves to lose its legitimacy in the eyes of the voters. Before we allow a party to claim the moral high ground, we ought to expect more of it than a zeal to legislate personal morality. A democratic society also needs a public morality, one that includes at the very least a commitment to honest debate, fair elections, and respect for the rights of all citizens.

Historically, the political right has had no monopoly on dishonesty, authoritarianism or violence. But in this time in this country, the attack on democratic institutions is coming mainly from the right. Maybe this month’s shocking events, from the full exposure of Donald Trump’s reelection plot to the reversal of Roe’s recognition of women’s rights, will prove to be a turning point.

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Last month I wrote two posts in response to Justice Alito’s draft opinion in Dobbs v. Jackson. In the first, I took issue with his legal argument for overturning Roe v. Wade. In the second, I discussed the political background, especially the embrace of the religious right by the Republican Party.

Here, I’ll make a similar distinction between legal arguments and politics in my response to the actual reversal of Roe v. Wade. Since the majority opinion conforms to the reasoning of Justice Alito’s draft, I’ll focus more on Justice Breyer’s dissent, in which he was joined by Justices Sotomayor and Kagan.

Many conservatives are framing the abortion ruling as a victory in the struggle to restore family morality. Many liberals frame it very differently, as an attack on women’s rights and personal freedom. While Supreme Court justices are hardly indifferent to such concerns, they must also frame the issue as a matter of constitutional interpretation. They must ask what the words of the Constitution assert or imply about the rights of Americans. Here, the words in question are primarily those of the Fourteenth Amendment:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Court’s conservative majority believes in a narrow interpretation of the amendment, one that Justice Breyer criticizes as a “pinched” interpretation. In the narrow view, Americans have only the rights that were acknowledged and intended at the time the Constitution and its amendments were ratified. In the case of the Fourteenth Amendment, that would be in 1868. The argument that Alito and company mainly rely on is that no right to abortion existed at that time, since it was not deeply rooted in American history.

The Breyer dissent agrees on this fact: “In 1868, there was no nationwide right to end a pregnancy, and no thought that the Fourteenth Amendment provided one.” For the liberals, however, that does not settle the matter, because they believe that the Constitution embodies core principles that the Court must interpret and apply to changing circumstances.

As a matter of constitutional method, the majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it. Our law in this constitutional sphere, as in most, has for decades upon decades proceeded differently. It has considered fundamental constitutional principles, the whole course of the Nation’s history and traditions, and the step-by-step evolution of the Court’s precedents.

Democratic principles

Those core principles include freedom and equality, which imply some limits on what the state can make people do or stop them from doing. For example, nowhere does the Constitution mention marriage, and the Fourteenth Amendment was not passed in order to protect historically novel forms of marriage. But in modern times, the Court has acknowledged and expanded upon the right to marry, protecting some types of marriage not “deeply rooted in American history,” in particular interracial marriage in 1967 and same-sex marriage in 2015. Among the Court’s “prouder moments,” according to Breyer, are cases in which it gave new meaning to the Fourteenth-Amendment guarantees of liberty and equality.

The trouble with a narrow reading of the Amendment is that it eliminates not only any right to abortion, but any other rights and freedoms not recognized in 1868.

According to the majority, no liberty interest is present— because (and only because) the law offered no protection to the woman’s choice in the 19th century. But here is the rub. The law also did not then (and would not for ages) protect a wealth of other things. It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. For that matter, it did not protect the right recognized in Skinner v. Oklahoma…not to be sterilized without consent. So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the States too—whatever the particular state interests involved.

Breyer argues that this leaves the conservatives with a logical conundrum:

So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

The majority opinion protests repeatedly that its ruling is not intended to threaten other constitutional rights, but Breyer worries that its reasoning is an invitation for future justices to go in that direction. In fact, one of the Court’s conservatives, Justice Thomas, has already indicated his desire to throw out contraceptive rights and same-sex marriage rights along with abortion rights. (He does not include interracial marriage rights on his hit list, which would be awkward given his situation.)

The difference between the conservative and liberal views is crucial for women’s rights. The conservatives rely on the narrow conception of rights prevailing in 1868, and they are not bothered by the fact that the only people who could ratify those rights were men. For liberals, that suggests a problem demanding further analysis and interpretive progress: “It is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation.” Now that the voting population is more “attuned”, we can view the matter differently.

Since they do not consider themselves bound by the view of nineteenth-century men, the liberal justices can concern themselves with the consequences of coerced childbearing for the freedom and wellbeing of modern women:

Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child… Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life” [quotation from Casey]. But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.

Precedent

Much of Breyer’s opinion is devoted to the importance of respecting precedent, as the conservatives appointed by President Trump claimed they would do during their confirmation hearings. For Breyer, the precedent at stake here is not just the Roe decision itself, but the “multitude of decisions” supporting the principle “that the Constitution places limits on a State’s power to assert control over an individual’s body and most personal decisionmaking.”

Now the Court has overturned previous decisions before. Both Alito and Breyer discuss the Brown v. Board of Education school desegregation case, which overturned the Plessy v. Ferguson ruling permitting allegedly “separate but equal” schools. While Alito and the conservatives regard the argument for overturning Roe as just as strong, Breyer and the liberals stress the differences. In the segregation cases, decades of discrimination had established the fact that segregated schools were not actually equal. In addition, “the law had begun to reflect that understanding. In a series of decisions, the Court had held unconstitutional public graduate schools’ exclusion of black students.” Nothing comparable has occurred with regard to abortion. No new body of facts has emerged to turn public opinion against it. And legal opinion in both the United States and the rest of world has generally become more supportive of reproductive rights.

No recent developments, in either law or fact, have eroded or cast doubt on those precedents. Nothing, in short, has changed… The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.

That new composition reflects the Republican Party’s success in electing a right-wing president and confirming three new ultraconservative justices, even as the country becomes gradually more liberal on matters of personal morality. I will have more to say about that in my next post.

The Breyer opinion is scathing in its criticism of the majority’s willingness both to retract a previously acknowledged right, something the Court has never done before, and to stand in opposition to the longstanding struggle to expand human rights in general, and women’s rights in particular. They need a stronger justification than “once upon a time” people lacked these rights.

It makes radical change too easy and too fast, based on nothing more than the new views of new judges. The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.

Individual rights vs. states’ rights

Roe v. Wade, as well as the later Casey decision, tried to balance the competing interests of pregnant women and state governments. They recognized that states have a more legitimate interest in protecting lives that could survive outside a woman’s body than in supporting the gestation of every fertilized egg. Breyer complains that the ruling “erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).”

Those of us who lived through the civil rights struggle of the 1950s and 60s remember how diehard segregationists invoked the notion of “states’ rights” to resist the egalitarian implications of the Constitution. Eventually new federal laws helped enforce minority rights, although laws like the Voting Rights Act face resistance to this day (and are getting no help from the current Supreme Court). But as Brown v. Board of Education illustrates, the application of constitutional principles by the courts also played an important and constructive role. In contrast, the Dobbs decision abdicates that role. It leaves women at the mercy of states with poor records on human rights in general, especially the rights of women and children within historically disadvantaged groups. Breyer points out that “nearly half of women who seek abortion care live in households below the poverty line.” They will feel the curtailment of their options most keenly.

Competing at the state level to have one’s views reflected in the law is part of our democratic system. In a constitutional democracy, however, we need the courts to act as referees, affirming the general principles that prevent one group from infringing on the rights of another. When judges refuse to apply the Constitution, or give it only the narrowest of interpretations, they leave it to the states to fight it out on the basis of power rather than principle. That makes it more likely that injustice will prevail, and indeed it often has. I have to agree, therefore, with those who regard this decision as a setback in the struggle for a free and equitable society.

Continued