Preview

Roe v. Wade has always been a kind of devil’s bargain for American liberalism. As I explained in my 2008 book, The Cause: The Fight for American Liberalism From Franklin Roosevelt to Barack Obama:

Feminists … rejoiced at the news, but perhaps what the decision best illustrated was the degree to which liberals’ cultural victories would be won in the courts rather than in voting booths, thereby inspiring backlashes against them and the courts that had ruled on them, wherever they took place. For many people, Roe implied allowing recreational/nonprocreational sex, which they linked to other changes in the culture that further fueled the antiliberal backlash. Rising divorce rates and the increased availability of pornography—especially its permeation of the larger culture through increasingly explicit movies and magazines such as Playboy, Penthouse, and the much raunchier Hustler—turned millions of economic liberals into cultural conservatives.

Undoubtedly, the loosening of sexual ethics, and simply suggesting that women experienced sexual pleasure as much as men, constituted a cultural victory for liberalism. The Germaine Greer style of feminism concerned itself less with equal access to education or professional advancement than with orgasms, while Erica Jong’s 1973 Fear of Flying celebrated the fantasy of the “zipless fuck,” one based on anonymity and lack of commitment. But such sexual liberties also presented a danger in crudely equating individual pleasure with liberation. The ERA’s failure provided sufficient warning about a general popular uneasiness with the side effects of the sexual revolution and the difficulty of politically legislated and/or judicially mandated cultural change It also created a whipping boy for conservative critics who suggested that liberalism, when it moved into cultural territory, was little more than mindless tolerance and permissiveness, ready to embrace a “zipless fuck” in virtually every aspect of public life.

The anger inspired by such reactions to Roe (Ruth Bader Ginsburg expressed a parallel, though more legally based, set of concerns about the decision) led to the movement that eventually packed the Court with five justices who were not only wiling to overturn “settled law” on abortion and lie about it during their confirmation hearings. We now know they were willing to do so much more, rolling back the clock on half a century of racial progress, gun control, separation of church and state, gay rights, workplace protections, honest government, the ability of the Environmental Protection Agency to protect the environment, and who knows what in the future. (This to say nothing of the fact that this reactionary political movement was also able to somehow elect a dangerous lunatic to the presidency in 2016.)

Since the early ’60s, liberals relied on what Samuel Moyn, in a prescient and tightly argued 2020 essay in Dissent, termed “juristocracy” rather than democracy to win their political battles. Now it has come back to bite them in the ass. Victories in the courts—which were reflected in the popular culture—led to complacency about winning elections. One could easily name a whole host of issues in which liberals enjoy a supermajority in opinion polls but cannot get anywhere in terms of legislation or even much in the way of presidential action, even when one of our guys is president.

Obviously, a big part of the reason for the chokehold on popular progressive legislation is the power accorded to money in our system (thanks, in significant measure, to the Supreme Court; I sort of wrote a book about this, too). That explains why billionaires pay virtually no taxes and why corporations can despoil the planet without sanction. But that does not explain everything, and it does not particularly explain the loss of legal abortion, nor the absence of far stricter gun control law, which both enjoy supermajority support.

The silver lining in the Dobbs decision—likely the only one—is the fact that, because it reaches so clearly and directly into the most intimate aspects of the lives of so many millions of people in a way that perhaps no other issue does, it may inspire the kind of passion on the progressive side that the right has consistently successfully ginned up for the past half-century. This is especially true in a period when both the Democratic Party and the resistance to Trump were—and are—female-driven. It also turns the tables on the juristocracy, with Republicans in the position of using the courts to subvert popular opinion.

Things have not exactly been looking up for Democrats of late. But on Monday morning, Axios reported two snap polls that followed the Dobbs decision: First, a CBS News/YouGov poll of 1,591 adults found that 50 percent of Democrats were more likely to vote based on the ruling, while only 20 percent of Republicans said the same. Second, an NPR/PBS NewsHour/Marist poll of 941 adults found that 78 percent of Democrats said the Court’s decision makes them more likely to vote this fall—24 points higher than Republicans.

Owing to the fact that at least two members of the Democrats’ one-member majority in the Senate (including the vice president’s vote) are really more comfortable with the Republicans’ agenda than their own, they do not have a hope of playing the same sort of dirty pool that Mitch McConnell used to stack the Court with ideologues who would march in lockstep with the conservative movement’s agenda. They will have to win back their rights—the ones we’ve already lost and the ones we are about to lose if Clarence Thomas’s writings and speeches are any guide (as they have been in the past)—in the streets and at the ballot box.

It must be a two-pronged effort: first, to save our democracy from theft by the fascist cult that has colonized the Republican Party and is planning to undermine the majority rule in 2024; and second, to inspire people who previously thought that everything—especially everything for well-educated, upper-middle-class urban and suburban elites—was going to be all right without too much effort on our part.

I think AOC’s approach is the right one on this, and 82-year-old Nancy Pelosi—who supported the only anti-choice, pro-NRA Democrat in the House against his progressive challenger—maybe not so much. (I mean, a poem? Seriously?) I also worry that 79-year-old Joe Biden—who is, according to “sources,” apparently worried about Democrats appearing too partisan and potentially threatening the alleged public trust of the very same Supreme Court that is gutting all of our rights and endangering our lives and our democracy—is also too much a man of the Democrats’ complacent past to be a man of this crucial moment. Biden, coincidentally, more than anyone ensured that Clarence Thomas would be shielded from his disgraceful past during his confirmation hearings and thereby approved by the Senate.

Given Biden’s poll numbers, and the concerns that one would have about any person of his age in so demanding a job, I do not think it would be such a terrible idea if, say, 54-year-old Gavin Newsom (who, as it happens, has coincidentally just bought advertising time in Florida) decided that the party was ready for new leadership and challenged him in the primaries running on a more energetic, and yes, partisan, platform (though I am still going to need an explanation for that marriage to Kimberly Guilfoyle).

More than 80 years ago, the Frankfurt School theorist Max Horkheimer, still in his more radical phase, insisted that liberalism was an unreliable basis of resistance to fascism, and only socialism would be strong enough to survive its onslaught. If Horkheimer is to be proven wrong, liberalism needs to finally become the “fighting faith” so many of its partisans have always hoped it would become. Dobbs may very well be the spark that makes that possible. (John Ganz, I see, has something similar to say here. And Michelle Goldberg has another, interesting point to make here.)

I saw Baz Luhrmann’s Elvis movie this week. I am usually a fan of his work, but not this time. My advice would be to stay home unless you really feel like going to the movies and there’s only crap playing. It’s entertaining, but far too long, narratively incoherent, and historically useless. Its saving grace is Tom Hanks’s amazing performance as Colonel Parker. But really, if ever there were an argument for originalism, the actual Elvis is it: Here, here, here, here (with the wonderful Ann-Margret), and finally, here are my favorites of the King’s many magnificent performances. Bonus: Here’s the greatest performer of any kind in any medium doing an unrehearsed solo “Burning Love” during a Paris preconcert sound check by request. And here’s an even more impressive one, also by request (and therefore unrehearsed) with the world’s tightest rock ’n’ roll band. And finally, here he is again, with the “Philly Elvis,” in one of the craziest performances you will ever see.