The Outrage Engine

The Supreme Court landed a one-two punch on the wild-eyed Left in the waning days of its current session. It affirmed that the Second Amendment protects an individual's right to carry firearms in public (and knocked down onerous roadblocks against that right erected by New York City and State) and overturned the judicial contortions crafted 49 years ago by outcome-driven justices in Roe v Wade.

You can tell how I feel about both rulings from my phrasing, it's safe to say. You can also determine my views on gun rights and gun control from the dozens of articles I've posted here and on the original Roots of Liberty page. What you don't know are my personal views on abortion - which are irrelevant, because the Dobbs ruling that overturned Roe is not about abortion.

Indeed, all Dobbs v Jackson Women's Health Organization does is declare that the matter is not properly the Court's to decide, and therefore it's up to state legislatures to set rules or restrictions.

Both these rulings were probable - likely, even - from the day the Court granted certiorari, given what we know about the Justices' forms of Constitutional judgment. With enough originalists and textualists seated, it was highly likely that a pro-gun-rights ruling would emerge from NYSRPA v Bruen and a revisiting of Roe would emerge from Dobbs.

Moreover, a draft of the Dobbs decision was leaked nearly eight weeks before the final ruling was released, so anyone who's sky-screaming anew over it is engaged at least in part in "performance art."

Nevertheless, sky-screaming ensued and will, I expect, continue through the mid-term election.

Which, the cynic in me concludes, serves the Democratic Party quite well. The virulent rhetoric directed at the Court by left-leaning politicians, the deafening silence in the face of physical threats aimed at the Justices, and the utterly reckless disdain for process and the nation’s rules tell the tale.

The Democratic Party had 49 years and two separate supermajorities in the Senate with which to codify the Roe parameters into law, yet failed to do so. The 95th Congress under Jimmy Carter, with Robert Byrd as Senate Majority Leader, had 61 blue votes in the Senate and a 134 seat majority in the House. The 111th Congress under Barack Obama, with Harry Reid as Senate Majority Leader, had 60 blue votes in the Senate and an 80+ seat majority in the House.

The party failed, across half a century of agitation, to ensure that a Court could not overturn Roe by mooting the ruling via legislation. Instead, the Left relied on the over-stated sanctity of Stare Decisis, even though the Court overturns, on average, one ruling a year.

Heed the words of Justice William H. Rehnquist:

Erroneous decisions in such constitutional cases are uniquely durable, because correction through legislative action, save for constitutional amendment, is impossible.  It is therefore our duty to reconsider constitutional interpretations that ‘depar[t] from a proper understanding’ of the Constitution.

In other words, the Court should not properly allow a past bad decision to stand. Indeed, if stare decisis were concrete, we’d still have Plessy v Ferguson on the books, and Brown v Board of Education would have deferred to Plessy.

We can speculate why the Democrats didn’t codify Roe in its 49 years of existence.

I surmise they didn't want some of their swing or red state members to go on record as supporting abortion-on-demand.

I surmise that they knew they had some anti-abortion Senators and Representatives that could not be relied on to vote en bloc.

I surmise they preferred a Sword of Damocles hang over Roe in perpetuity, so that they could agitate their base to keep voting Democrat despite countless other Party failings.

Biden called on Congress to codify Roe in the wake of the Dobbs decision. This is also just theater. He and the party leadership know they don’t have the votes in the Senate to overcome the filibuster, and indeed they didn’t even get all 50 Democratic Senators to vote on the Women’s Health Protection Act this past May (Manchin voted no).

Such a bill wouldn't serve them, in any event, if enacted. They want and need this to be an outrage issue. They've nothing else to run on in the mid-terms. Biden's record is a horror show, their major legislative achievements are fueling runaway inflation, their energy agenda has driven prices up at the pumps, and the balance of Biden's first year and a half has been, to put it bluntly, a hot mess.

With neither the law nor the facts on their side, the Democrats are left with pounding the table as their only option. So, we will hear all about how the Bruen ruling will turn New York City into a shooting gallery. We will see endless parades of Handmaid's Tale-robed protestors - many or most of whom live in states whose abortion access will either go unchanged or actually expand. New Jersey and Oregon, for example, allow abortion without any gestational limits. We will be told that the only way to save the nation is by keeping the Democrats in power so they can pack the Court and undo these horrors. And laced throughout all of these will be equivocation, tendentiousness, and outright lies about what the laws say and what the Court did.

The outrage engine will continue to be stoked. Those who would rather believe and repeat favorable falsehoods will continue unabated. Those who thrive on hate of anyone not of their tribe will continue to fulminate. And those of us who want to try and have reasonable and temperate dialogues will find no room in their tent. I excuse my cynical opening paragraph, given this reality.

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Yours in liberty,

Peter.