Good morning,
Two new essays from me this week. The first, which was published on Friday, discusses the state of the conservative legal movement as Dobbs v Jackson Women’s Health — the biggest abortion case the Court will hear in a generation — approaches oral arguments next month.
Justices Brett Kavanaugh and Amy Coney Barrett have been giving troubling signals from the bench, suggesting they may go the wrong way on Dobbs. If, as I argue, the conservative legal movement has not formed Supreme Court justices who are prepared to overturn blatantly unconstitutional decisions like Roe v Wade and Planned Parenthood v Casey, the entire movement has been a failure.
The second essay was published this morning, and discusses Friday’s House vote on the bipartisan infrastructure package. 13 House Republicans provided House Speaker Nancy Pelosi the deciding votes to move the bill forward — and in doing so, sealed the deal on consideration of the Democrats’ hotly partisan reconciliation legislation.
Right-leaning populists are taking issue with the anger from conservatives over passage of the infrastructure bill. Infrastructure, they say, should be non-partisan. But, as I lay out in the essay below, Democrats made an explicit choice to politicize the infrastructure bill by linking it to reconciliation. If populists are to be successful as a policy movement, they have to be able to also understand the politics at work.
Finally, I joined Amber Athey and Matt Purple on the Spectator’s podcast for a short discussion of Facebook’s move toward the Metaverse.
Thanks, as always, for reading,
Rachel
If Kavanaugh And Barrett Betray Pro-Lifers, We Must Blow Up The Conservative Legal Movement
If we don't have justices who are comfortable overturning outrageously unconstitutional abortion rulings, it will be proof of the conservative legal movement's utter failure.
Less than a handful of years after their hard-won elevation to the Supreme Court, Justices Brett Kavanaugh and Amy Coney Barrett are sending a chill down the spines of conservatives with a string of bad signals from their seats on the court.
In July, Kavanaugh and Barrett joined the court’s leftist majority in declining to hear Arlene’s Flowers v. Washington, a critical religious liberty case. They again sided with the court’s left in a similar decision to turn away a religious exemption challenge to Maine’s vaccine mandate — which Justices Neil Gorsuch, Samuel Alito, and Clarence Thomas took pains to note was staggering in its hypocrisy.
“A State may not assume ‘the best of individuals engaged in their secular lives while assuming ‘the worst’ about the habits of religious persons,” the trio wrote.
Just this week, Barrett and Kavanaugh embraced a theory of judicial supremacyout of step with a more conservative tradition when they both appeared openly skeptical of the construction of the Texas abortion law, which bans the practice after six weeks of pregnancy.
All of this should make the guts of conservatives churn in the leadup to next month’s oral arguments in Dobbs v. Jackson Women’s Health, the biggest abortion case the court has heard in decades. I’ve written about the importance of this case before:
While abortion cases post-Roe have tricked up to the Supreme Court on rare occasions, none have presented the clear and fundamental question that Dobbs now brings: whether or not bans on pre-viability elective abortions violate the Constitution.
In ruling on this case, the Court will have the opportunity to overturn both Roe and Casey, which together form the architecture for a constitutional entilement to abortion.
It is not an understatement to say this is the case pro-life conservatives have been waiting for. It’s why many in our movement willingly shed blood in the vicious fight for the confirmations of Kavanaugh, Barrett, and Gorsuch. The prospect of a majority conservative court was a key reason millions of Republicans turned out to vote for Donald Trump.
So the trepidation conservatives now feel about where Kavanaugh and Barrett may end up on Dobbs is both unexpected and unwelcome. There is a distinct possibility that Barrett, Kavanaugh, and possibly the George W. Bush-appointed Chief Justice John Roberts will find a way to hedge; to “both sides” their way into a narrow and distorted opinion in a case that, as Mississippi’s Attorney General Lynn Fitch has laid out, demands a clear imperative with regard to the dubious constitutional standing of Roe and Casey.
To be clear, with a 6-3 allegedly conservative court, anything less than a decision ringing with clarity on the dismissal of Roe and Casey should be viewed as a failure. Despite the goal-post-shifting going on in establishment Republican legal circles, there is no “long game” here. Although some will argue that any ruling that chips away at Casey is good enough, Roe is the case that created the constitutional entitlement. It is the architecture upon which the legal abortion structure is built. Both Roe and Casey must go.
As Notre Dame law professor Sherif Girgis argued recently, “Upholding the Mississippi law without overruling the court’s previous abortion cases would lack support in any legal source, send even more abortion cases to the court and curb the justices’ ability to overrule Roe down the road.”
We have played the long game for the last 50 years. And we have finally arrived at the decision point, with a case that demands a clear accounting of rulings that Justice Thomas has criticized as “creat[ing] the right to abortion out of whole cloth.” Here to litigate it is a Supreme Court that doesn’t again require “just one more justice,” but is finally positioned to address the question.
If the outcome of Dobbs is indeed a hedge that splits the court’s conservatives — or, to put it more bluntly, if the conservative legal movement has failed to produce Supreme Court justices who are comfortable overturning two outrageously constitutionally defective rulings on abortion — we will be left to justifiably wonder what the whole project has been for.
The Judges Are Our Politicians Now
That we are even in the position to openly speculate where Kavanaugh, Barrett, and Roberts might end up on such a foundational conservative legal question should itself prompt reflection, not only about the expanded role the court now plays in our self-government, but also about how we select our judicial masters.
The court has become an extension of our politics, and that is just as much a choice from Republicans as it has been from Democrats. It wasn’t supposed to be this way. The American founders envisioned a judiciary that was largely subject to a muscular legislature, not the branch that ruled it. But this inversion is what the modern Congress has come to prefer.
The profound questions of our social order — immigration policy, questions of human dignity and the sanctity of life, of marriage, religious liberty, and civil rights — are no longer determined by the legislature, but by unelected and thus unaccountable jurists.
As a case study in congressional preference for judicial decisionmaking, view the collective shrug that resounded from Republicans in Congress when Gorsuch tossed sex and gender identity into the 1965 Civil Rights Act in 2020. Or consider the lack of comprehensive effort among congressional Republicans to challenge President Joe Biden’s sweeping and unprecedented vaccine mandate, now that the Supreme Court has repeatedly sidestepped it.
Also consider the limp non-response from congressional Republicans to the court upholding President Obama’s clear abuse of rulemaking in creating the illegal amnesty program known as the Deferred Action for Childhood Arrivals, or DACA. Add the one pro-life vote Republican majorities allow each year in lieu of an energized campaign to persuade, expose, defund, and actively legislate on one of their key platform issues.
Republicans in the Senate, in particular, will huff about not having 60 votes as a reason none of these policies would be possible. But such a position ignores the actual work of lawmaking: using a majority to vote relentlessly on priority issues, messaging constantly toward a specific policy end, and creating a voting record unfavorable to the opposition.
The last legislative pro-life victory, the ban on partial-birth abortion in 2003, invoked nearly all of these methods. Today, it’s a rarity for the Senate, regardless of party control, to show up for work more than 2.5 days a week.
A New System of Judicial Vetting
In 2018, this largely implicit preference to outsource policy-making to the courts became explicit when then-Senate Majority Leader Mitch McConnell decided to forgo using the Senate GOP majority to try and legislate, but rather to confirm as many judges as possible.
There were pros and cons to this choice, but the clear upshot of asking judges to make every consequential determination about how the country will be ruled is that judges become, effectively, our politicians — unelected politicians with lifetime appointments, but politicians nonetheless. Yet on the right, we do not vet them as such. Not even close.
I’ve addressed the contradictory and self-defeating aspects of this position before:
…expecting judges to rule on matters of policy and politics while simultaneously refusing to vet them for their beliefs in those matters is both contradictory and unsustainable. A party cannot on one hand expect judges to issue the correct policy decrees while on the other hand studiously fail to take any steps to guarantee that outcome.
While the left has not been shy about their practice of nominating stone-cold activists, the right has always held to the norm that judges should be interpreters of the text in front of them rather than ideologues who use the bench to invent new values-driven legal theories that impose their own views on the country.
This is, of course, the prudent and correct standard of judging and of judicial interpretation, writ large. But it fails to account for the intentional shift of expectations that have taken place from the “judge-as-textualist-interpreter” to our current conception of the “judge-as-legislator.” In many ways, the right’s ideological position of applying the normative standard of restrained judicial vetting seems out of step with the current post-normative reality of how the country is actually ruled.
The left accounted for this shift long ago, and it is why they never suffer a surprise decision from their nominees. They already know exactly where their judges stand on every issue, minuscule to monumental. But since the right is now a regular and active participant in placing the burden of self-government onto the judiciary, it would seem as though we should do more to ensure that the people we place in those positions will actually uphold our interests.
For starters, this should mean that the imprimatur of the Federalist Society requires more questions, not less. We should applaud, not condemn, Republican senators who do their jobs and vigorously question the nominees of both the right and the left, and who hold exacting standards for nominees on constitutional questions. Also, the conservative movement as a whole, not just a select few, should be welcome to offer input into the selection process for nominations to key judicial positions.
If Congress is going to continue passing off the questions of self-government to the court — that is, if they are going to force judges into making choices that are inherently political — then perhaps the cleanest response is to simply put the politicians on the court.
Among Republicans in the Senate, there are three former Supreme Court clerks: Sens. Mike Lee, Ted Cruz, and Josh Hawley. If another vacancy presents itself under a Republican administration, perhaps it’s time we skip the backroom Federalist Society coronation of some pre-selected circuit court judge and simply elevate a senator to the Supreme Court.
At least senators have a record of votes we can examine. Unlike Kavanaugh, Barrett, and even Gorsuch on transgender issues, there will be mercifully few surprises about where they actually stand. The conservative movement cannot afford bitter surprises, at least not when the Supreme Court has taken for itself, with the willing encouragement of the legislature, a dual role of interpreting the law as well as making it.
Rachel Bovard is The Federalist's senior tech columnist and the senior director of policy at the Conservative Partnership Institute.
How 31 Republicans Just Betrayed The Country To Reward Illegal Immigration, Worsen Inflation, And Pay Off Democrats’ Donors
A vote for the bipartisan infrastructure bill is a vote for Biden's reconciliation legislation -- the largest cradle-to-grave expansion of federal power since the New Deal.
At nearly midnight on Friday, 13 House Republicans gave Speaker Nancy Pelosi the votes she needed to pass the so-called “bipartisan infrastructure bill” — colloquially known in DC as the BIF. In doing so, these House Republicans, among them two members of the House GOP leadership team, all but guaranteed House passage of Joe Biden’s hotly partisan, $2 trillion reconciliation bill, which represents the largest cradle-to-grave expansion of federal power since the New Deal.
Over at National Review, Philip Klein called the move by these 13 Republicans “political malpractice,” and a “betrayal.” He’s right, particularly on the first point.
Republicans who supported the bill predictably justified their vote as one for “roads and bridges,” pointing to the benefits that the bill’s largest provisions — like the $47 billion in climate funding and the $66 billion for the failing Amtrak system, provided without any reform — will ostensibly bring to their districts.
As Rep. Don Bacon (R-Neb.) told The Hill, “I thought it was good for our district, I thought it was good for our country.” Meanwhile, left-of-center commentator Andrew Sullivan huffed about the “fanatical tribalism” being applied to a bill about infrastructure.
That the BIF was a bill solely focused on infrastructure may have been true at the bill’s conception. But for months, a single and unavoidable political reality has been obvious: the substance of the bill hardly mattered. Rather, the infrastructure bill was but a chit, a chess piece, in forcing through passage of the larger, hotly partisan reconciliation legislation. Their fates were linked; one would not pass without the other.
This was a choice made very clearly, and very openly, by congressional Democrats. In June, Pelosi stated, “There ain’t gonna be no bipartisan bill, unless we have a reconciliation bill,” a sentiment she reiterated in October when she confirmed “the bipartisan infrastructure bill will pass once we have agreement on the reconciliation bill.”
House Progressives made the linkage of the two bills central to their strategy of leveraging concessions in the reconciliation legislation, refusing to provide votes for the BIF until their reconciliation demands were met (six of them ended up refusing to support passage the BIF, paving the way for House Republicans to be the deciding votes).
Even President Joe Biden tied the fate of the infrastructure legislation to the reconciliation bill. He did so explicitly in June, then said he didn’t really mean itafter Senate Republicans expressed outrage (but then 18 of them voted to pass the bill in August, anyway), and then linked them again in October when he toldHouse Democrats that infrastructure “ain’t going to happen until we reach an agreement on the next piece of legislation,” reconciliation the infrastructure bill.
So to claim that a vote for the infrastructure legislation was merely a vote for “roads and bridges,” devoid of any other major political context, is just willfully ignorant of the obvious and openly stated politics at work. A vote for the infrastructure bill was very clearly a vote for the reconciliation legislation. The inability to understand this reality raises not only questions of basic political acumen, but of the ability of House Minority Leader Kevin McCarthy’s leadership team to hold their conference together on consequential votes.
It’s worth unpacking a few of the provisions in the reconciliation bill that this group of Republicans will help make possible. Among them:
A 10-year amnesty for illegal immigrants, which includes work permits and driver’s licenses and cannot be undone by future administrations for a decade.
Provides millions of dollars in funding for the IRS to enforce the Biden administration’s plan to review every bank account with $10,000 or more.
Expands and shores up provisions of Obamacare.
Eliminates the statutory cap on employment visas, effectively allowing Big Tech companies and other mega-corporations to prioritize hiring foreign workers over American workers.
Facilitates enforcement of Biden’s vaccine mandate by increasing OSHA penalties on businesses up to $700,000 per violation and provides billions in funding for the Department of Labor to increase enforcement.
Mandates taxpayer coverage of abortion, leaving the long-agreed upon Hyde amendment out of the bill.
Provides half a trillion dollars in climate spending, including clean energy tax credits to subsidize solar, electric vehicles, and clean energy production, as well as federal spending on clean energy technology and manufacturing, all while limiting domestic energy production, thereby increasing dependence on Russia and China.
Provides roughly $400 billion for expanded government childcare and universal pre-K, which pumps millions into failed Head Start programs, excludes support for families who prefer at-home child-care arrangements, and by requiring that preschool teachers have a college degree, will reduce the availability of child-care options.
A host of new taxes, and a giant tax cut for the rich: by including a repeal on the cap for the state and local tax deduction, Democrats will provide a $30 billion net direct tax cut for the top 5 percent of earners, largely in blue states where the state and local taxes are much higher.
The “Build Back Better” reconciliation legislation is a bill that transforms the role of the state in every aspect of an individual’s life, while expanding key Democratic priorities like amnesty, abortion, cheap foreign labor, a dysfunctional health care system, and invasions of financial privacy. And consideration of the bill in the House wasn’t made possible by the Democrats in the majority, but by House Republicans.
There are those, like Sullivan, who will still bemoan that political polarization has taken over even relatively popular policies like infrastructure. But politicizing the infrastructure bill was the clear and unambiguous choice that Democrats made when they linked the two bills. To expect most Republicans to be as tin-eared and politically naive (or, like Rep. Adam Kinzinger, as openly tied to Democratic priorities) as the group of 13 is ridiculous. It’s asking them to act against their own self-interest.
Democrats drafted a partisan reconciliation bill with no Republican input, full of provisions they knew Republicans wouldn’t support, and then hijacked an otherwise bipartisan bill to ensure passage of its much more expansive and partisan cousin. This was a specific choice Democrats made, and Republicans are not responsible for it — nor should they be expected to vote for a bill that is the stated gateway to related legislation with which they profoundly disagree.
Regardless, the infrastructure bill now goes to the president’s desk. Eighteen Republican senators helped pass it in August, and so did 13 House Republicans (for a total of 31), knowing full well they were also voting on the amnesty-filled, abortion-funding, financially-snooping, cheap-labor loving reconciliation bill, gave it the required boost. Betrayal, as Klein noted, is not too strong a term.
Rachel Bovard is The Federalist's senior tech columnist and the senior director of policy at the Conservative Partnership Institute.