Normality and Increasing Awfulness -- Why Post-Roe Politics Will Not Save Democracy
by Neil H. Buchanan
Even the most casual reader of Dorf on Law is, I suspect, immediately struck by the pessimism infusing much of what we publish here. The other day, I received an email from Professor Dorf under the subject line: "Our blog posts -- in cartoon form," providing a link to the latest from the indispensable satirist Tom Tomorrow. Mr. Tomorrow (?) is capable of capturing in only six cartoon panels what a gifted writer would need at least six thousand words to convey (and that I would eventually cover in 15,000 words).
Misery loves company, and it is oddly heartening to see others who are as pessimistic as I am. Maybe that says something about me, but in any case, I have lately been trying to think -- on (what I hope is) a deeper level -- about the sources of our well founded pessimism. That is, much of my writing over the last several years has been a matter of describing the political mechanics that are in the process of killing our constitutional democracy. But those mechanical processes have existed for a long time and are ultimately run by people. The people who run them, however, are doing so in increasingly corrupt and shameless ways. Why the change?
People tend to talk about "the new normal" of American politics, which allows us to contrast the current situation with the shattered norms of the past. We also need to think about what has caused so many people not to care or even seem to notice that everything is different. Unlike most of our conversations about this country's politics, this is truly a situation in which both parties are to blame -- but in very different ways.
When I refer to politico-mechanical matters, I mean the many moving parts of our constitutional and legal structures that have brought us to this point. In my column on May 6, for example, I wrote this:
As a relevant aside, consider the arithmetic for 2024. ... If all state-level Republicans were to play ball in the way that Trump's people tried and failed to get them to overthrow constitutional democracy in 2020, the Republican nominee would have a lock on 310 electoral votes, no matter what happens in the voting booths. That is the hard truth.
The embedded link in that passage leads to an interactive Electoral College map from www.270towin.com, which reflects changes to electoral votes in light of the 2020 redistricting (Texas, most notably, gaining two additional votes based on the latest census). I reached my conclusion by making three assumptions:
(1) The states that voted for Trump in 2020 are not in any way in play for Democrats in 2024.(2) The states with Republican trifectas -- Republican governors and all legislative bodies led by Republicans -- that are not already covered by assumption #1 will see their governors and legislatures intervene through whatever means necessary to certify Republican electors in December 2024, no matter the outcome at the polls.(3) The states that have Democratic governors but in which both houses of the legislature are Republican-led will see their legislatures do what Trump's people tried and failed to get them to do in 2020, that is, announce that because the United States Constitution uses the word "legislatures" in relevant provisions, it is the legislatures alone (unhindered by governors, state courts, or state constitutions) that can send Republican electors to vote in 2024. This "independent state legislature theory" (ISL), as the Amar brothers and others have shown, is complete nonsense; but the awful new normal is that people are now willing to embrace even the most extreme nonsense.
I should note that Wisconsin, Michigan, and Pennsylvania could all become trifecta states later this year, as their governors' offices are up for grabs. If even one of those states has a Republican governor serving in 2024, we do not even need to get to my assumption #3 and the ISL. Indeed, we can even allow New Hampshire's trifecta to honor its voters' wishes, and Nebraska's Republicans not to switch their state to all-or-nothing voting, and still have the Republican presidential candidate guaranteed a win -- 271 electoral votes at a minimum.
And even if assumption #1 is incorrect and North Carolina were somehow in play in 2024 (NC being the state that Trump won in 2020 by the closest margin), its Democratic governor is the only thing holding the line in the Tar Heel State -- a state where Republicans and their outgoing governor proved their shameless Trumpiness even before it was fashionable by holding a lame-duck session in late 2016 to strip the incoming Democratic governor of power. There is no reason to think that they would hesitate, if they retake the governor's office later this year, to adopt the strategy embodied in assumption #2.
Again, however, this is all mechanical -- which is not to say that it is anything but essential to understand, only that it leaves unsaid why anyone should imagine that those three assumptions are all but inviolable. Similarly, we could note that, say, the federal courts are in no way interested in stopping Florida from imposing an unconstitutional poll tax on ex-felons, making Florida a red state rather than a swing state, simply by looking at the numbers. But why are the courts so willing to allow this to happen -- or, for that matter, why is the Republican-dominated state government here able (and eager) to ignore a statewide referendum that passed overwhelmingly in 2018 that should have re-enfranchised people who have paid their debts to society?
By the end of last week's (understandable and appropriate) national freakout over the upcoming overruling of Roe, the answer to that bigger question -- Why is it impossible to stop the death of democracy, not just as a mechanical matter but as a matter of people's willingness to do what they are going to do? -- was becoming ever clearer. On Friday, I wrote here on Dorf on Law that "[t]here is no way that the current Congress will be able to pass a law
making abortion legal across the country. Democrats have been chattering
about doing so, but it is not going to happen." Yesterday, the Senate voted 49-51 on that proposal, falling eleven votes short -- and implicitly at least one vote short (but probably more than that) of suspending the filibuster to take a majority-rule vote.
The Democrats' stated strategy, of course, is to make post-Roe politics all about Roe, which makes sense in light of the popularity of women's reproductive freedom and the Democrats' need to change the conversation. Even so, The New York Times published another tedious column by Thomas Edsall yesterday, under this headline: "If There’s a Loud Fight About Roe, 'Centrist America Will Just Turn Down the Volume.'" Notably the quote within the headline was from a Republican pollster, not from a neutral or independent observer (or Edsall himself), which is part of the tedium of Edsall's columns: surveying a combination of experts and hacks and then drawing whatever centrist or conservative conclusion he wants to push on any given day. The message is almost always: "Whatever you were thinking of doing, Democrats, forget it. The country disagrees with you." -- even though the country very much agrees with Democrats, on this and almost every other issue of consequence.
So the message quickly becomes that even though Democrats have been handed an explosive issue that has the possibility of changing things in a big way, they must not do anything to exploit it. The Democrats could (and should) ignore such advice, but why would we expect them to do so? As Tom Tomorrow depicted it in his panel labeled "Democrats spring into action," Nancy Pelosi says that "[i]t's time to unleash the carefully-crafted response we've obviously been preparing for years!" to which Chuck Schumer replies: "Uhhhhhh ... vote harder?"
The reason that post-Roe politics will not save democracy, then, is not only that the Republicans have locked down all of the means by which democracy could be saved. It is why and how that happened. Democrats allow themselves to be lulled into complacency and hyper-cautious paralysis, and Republicans push ever forward.
But again, why do we simply assume -- or accept -- that this is what Republicans will do? Why, in particular, is my assumption #1 above (that not a single state that Trump won in 2020 will be in play in 2024) so obviously true? After all, Trump has done nothing but continue to alienate people since November 2020, holding weird rallies and sending out nasty messages (including a bizarre attack on the people that he hates that began as a Mother's Day post). Oh, and there was that whole insurrection thing.
We barely even stop to notice anymore that there is no longer even a brief moment of revulsion among Republicans to anything that Trump says -- or to news about what he did. It is all a seamless continuation of unquestioned loyalty. The people who dare to challenge him occasionally do so for honorable reasons, such as the South Carolina Republican congressman who voted to impeach Trump in 2021 (and is now fighting a Trump-driven primary challenge). Even so, these people had no problem voting against his first impeachment, or for supporting their party's full takeover of state legislatures and congressional seats through extreme gerrymandering and voter suppression.
These are all things that we simply accept, because we are beaten down. Democracy will die because Republicans want it to die, because Democrats have always been too timid to do anything to keep it alive, and because the people who hold themselves out as neutral arbiters are more worried about whether the leak of a Supreme Court draft opinion is a horrific breach of honor than they are about whether, say, the end of the child tax credit will drag millions of children back into poverty.
The Progressive Caucus in Congress backs a very un-progressive incumbent (in an entirely safe district in Cleveland) against an actual progressive. Congressional Democrats are at this very moment backing an incumbent who is anti-Roe in a primary against a pro-choice progressive candidate, with Nancy Pelosi offering the jaw-dropping justification that "[h]e is not pro-choice, but we didn't need him; we passed the bill with what we had." Way to press your advantage!
Meanwhile, Republicans in North Carolina are attacking Madison Cawthorn not because he is a neo-fascist but because he stepped on their toes in the state's internal power struggles. There is no longer even a blip when Republicans find out that yet another colleague has appeared with White nationalists or paramilitary groups. Trump is reported by his own former Defense Secretary as having suggested shooting protesters in the legs. Yet no one expects any of that to flip a single Republican's vote in any election.
Post-Roe politics will not save democracy because Republicans want to destroy it, and they know that they will not pay a price for doing so. Even if some Democrats are inclined to put up a fight, they will be bothsidesed and cautioned to play nice. The mechanics are inexorable because no one even dares to hope that people in more than half of the states are anything but Trump cultists. Democracy is dying because no one seems to think that it can be revived, or even that it is worth putting in much of an effort to try.