Though the Supreme Court’s ruling last week effectively assenting to the near-total elimination of abortion in Texas is shocking for its destruction of women’s rights, it portends a broader, frightening assault by the Republican Party against the basics of liberal democracy and a free society. Particularly unsettling to me is the court’s refusal to dismiss outright the Texas legislature’s particular approach to destroying women’s rights; under the law, individual citizens enforce the abortion restrictions via civil lawsuits, in what many observers are describing as a form of “vigilante” justice, turning individual citizens against each other and creating a system of snitching akin to that found in authoritarian regimes. Even worse, citizens are incentivized to act under the law because they stand to be paid a $10,000 bounty for reporting those who break the law. As Michelle Goldberg persuasively describes, this encouragement of vigilante justice is part and parcel of a wider movement in the GOP:
Today’s G.O.P. made a hero out of Kyle Rittenhouse, the young man charged with killing two people during protests against police violence in Kenosha, Wis. Leading Republicans speak of the Jan. 6 insurgents, who tried to stop the certification of an election, as martyrs and political prisoners.
Last year, Senator Marco Rubio praised Texas Trump supporters who swarmed a Biden campaign bus, allegedly trying to run it off the road: “We love what they did,” he said. This weekend in Pennsylvania, Steve Lynch, the Republican nominee in a county executive race, said of school boards that impose mask mandates, “I’m going in with 20 strong men” to tell them “they can leave or they can be removed.”
Over the last several years, Republicans have taken a number of steps to legalize various forms of right-wing intimidation. Several states have granted immunity to drivers who hit people protesting in the street. In some states Republicans have given partisan conspiracy theorists access to election equipment to search for ways to substantiate accusations of voter fraud. They’ve also passed laws empowering partisan poll watchers, who have a history of intimidating both voters and election worker.
Goldberg places the Texas law squarely in this demented vein, describing how the law will allow citizens to harass and intimidate those who assist women in seeking an abortion. The end result, not surprisingly, is that the threat of harassment will effectively end even the pretense of abortion rights left in Texas — if anyone can launch a lawsuit based on their gut feeling that a woman is getting an abortion after six weeks, how many people would run such a risk to help her? Capping off the sinister construction, such vigilantism is aimed at overturning a right still ostensibly protected by Roe v. Wade, which the Texas law’s 6-week pregnancy rule obviously runs afoul of.
Tellingly, the Texas abortion law and other maneuvers that Goldberg describes are an explicit perversion of democratic norms. Citizens are encouraged to become politically active — what would generally be a positive thing in a democracy! — yet their activism has anti-democratic ends, aimed as it is at intimidation and the suppression of the rights of their fellow citizens. The GOP is increasingly comfortable with subordinating the rule of law to the rule of force. The prime exhibit for me remains the GOP’s broad indifference, if not outright support for, the events of January 6, when a Republican president instituted a violent coup against the American government — yet as dark and dangerous as that day was, the idea of encouraging millions of Americans to take the law into their own hands will have still more catastrophic and long-lasting consequences for our country.
The Editorial Board’s John Stoehr makes complementary points to Goldberg’s about the Court ruling, arguing that it’s of a piece with a pervasive lawlessness in the GOP that encompasses not only vigilante justice, but governors and legislatures that pass laws to prevent local communities from anti-coronavirus mask mandates, a general opposition to gun control measures of any kind, and the secretive nature of the abortion ruling itself that was clearly intended to avoid the repercussions of abortion restrictions opposed by a strong majority of the American people. Stoehr makes the key point that this ruling not only undermines the rule of law, but the basic trust necessary for our society to function, writing, “By putting a bounty on the heads of people who aid and abet abortion-seekers, the law creates a market for snitching, turning neighbor against neighbor, family against family, giving bad-faith actors something to gain from treachery. Instead of making law that incentivizes service to the common good, Texas made law that incentivizes the moral corruption of social bonds.” He also points out how these dangerous effects intersect with the means of the Court’s ruling, which came via the “shadow docket” process wherein the Court declines to include either its reasoning or subject the decision to the arguments of outside counsel.
So what in isolation would have been merely a catastrophic move by the Supreme Court — more or less eliminating abortion rights for women in Texas — also brings into sharper, chilling focus the broader authoritarian movement that has overtaken the GOP. We can argue about whether the seeds of authoritarianism were always latent in the modern Republican Party (and I would respond with a YES), but no objective observer can now say that this is a party that adheres to democratic norms and the ideals of a liberal democracy. I never thought that an effective overturning of Roe v. Wade would potentially be overshadowed by how it illuminated even deeper dangers to our democracy, or be rivaled by the idea that the Supreme Court would give its approval to mob justice — and yet this is our disorienting reality (as Stoehr notes, the Court’s decision, “was done in the shadows, and because of that, the Supreme Court risks becoming, if it is not already, a font of lawlessness and disorder rather than a sentinel of lawfulness and order”).
The idea that not only Republican politicians, but now GOP-appointed Supreme Court justices, are building a quasi-legal framework that dismantles both the rule of law, and a free and fair society, fills me with dread, and doubly so because the Democrats and other supporters of democracy seem so far behind the curve in responding to this existential threat. The Nation’s Elie Mystal has a great Twitter thread making just this point on the abortion front:
Not having a plan for this day, from either the WH or Congress, only "looking into federal options" or "planning to bring a bill to the floor" now, is ITSELF malpractice. Texas passed this law in MAY. Mississippi has it's own Roe killing law in front of SCOTUS NOW. Did you think they were JOKING? Did you think these conservatives who have spent a generation trying to take away abortion rights were going to STOP? [. . .] The Executive Branch has "whole of government" action plans for everything from alien invasion to LOTS OF SNOW. But they *didn't* have something on file, ready to DEPLOY, the moment women's rights were attacked in this country, LIKE RED STATE REPUBLICANS HAVE PROMISED TO DO?
While there’s some small gratification in seeing the House move to pass legislation codifying Roe v. Wade, there’s no way such a law is going to pass the Senate — and so Mystal’s points gain even greater resonance. The Supreme Court has just assaulted the basic human rights of millions of Americans, and there is no immediate plan by the White House to protect the right to abortion of Texas women in the here and now? As frustrating as the lack of a plan is the predictability that Mystal highlights. As he says, so long as Roe v. Wade is the law of the land, the executive branch should be guaranteeing the right to an abortion, whatever smoke and mirrors the Court’s ruling has put up (Mystal has a piece in The Nation that elaborates on possible ways the Biden administration can continue to ensure that Texas women have access to abortion).
Dispiritingly, the lack of a Democratic response to Republican moves on abortion is echoed across a much broader range of political conflict. As the GOP essentially mobilizes vigilante movements against voting rights, where is the Democratic national legislation to defend free and fair elections? As GOP legislatures pass laws allowing drivers to mow down Black Lives Matter protestors, where is the federal legislation strengthening the right to protest free of physical harm? As right-wing extremists assault members of the media, where is the federal legislation that ensures that those who attack a free press go to jail? A year out from civil rights protests often handled in brutal and repressive fashion by police, where is the federal legislation requiring that no members of white supremacist groups are able to join law enforcement? As the GOP mobilizes against the basics of our democracy, it is incomprehensible to me that the Democrats are not using their main levers of power — the ability to pass and enforce laws — to repel this wave of violence and intimidation.
The threat to Americans’ freedoms isn’t something vague lurking over the horizon; it’s actually happening, here and now. As Ron Brownstein describes, multiple states controlled by Republicans have already enacted right-wing agendas, including legislation meant to retain power even against the will of the majority — an authoritarian vision put into everyday practice. For Democrats not to respond to this with federal legislation undoing this assault on basic freedoms and majority rule is, again, self-defeating and incomprehensible to me.
Likewise, as I’ve written before, Democratic politicians’ unwillingness or inability to rally the democratic majority, to mobilize the citizenry to the (mostly symbolic) democratic ramparts by getting involved with local and state politics, and to pressure their elected officials to defend democracy, may be the single most glaring failure of the Democratic Party today. In light of the reality that the GOP is mobilizing a mass vigilante movement against American democracy, the continued Democratic consensus that they must treat the GOP as equal, good-faith partners in American democracy seems increasingly suicidal. The Democratic failure to properly describe and frame the stakes of American politics today is astonishing, and only becomes more so when you consider that the principles I’m talking about — free and fair elections, freedom from right-wing violence, the right of women to bodily autonomy, just to name a few — are the clear majority position in the U.S. In fact, positions like the GOP’s anti-masking zealotry and refusal to acknowledge, let alone act on, climate change, lead to a reasonable conclusion that the modern Republican Party simply cannot be trusted to protect the lives or livelihoods of Americans. Meanwhile, a more detailed case could be made that the GOP constitutes a retrograde movement that rejects modern life, science, and individual liberty in favor of a white supremacist, Christianist, male-dominated hierarchical society. The GOP’s turn to lawlessness is ultimately a sign of weakness, not strength, and there is simply no excuse for the Democratic Party not to make the stakes of our political conflict as plain as day to the American people, and rally the support of a clear majority to reinforce and reconstruct a vital American democracy that serves us all.