Tomasz Sawczuk: The Supreme Court has overturned Roe v. Wade. What is the social and political significance of this decision?
Jeffrey C. Isaac: The decision has already been a nightmare for women everywhere and for everyone who cares about this denial of reproductive freedom to women.
Its most obvious consequence is already being felt: in many states throughout the country (Kentucky, Louisiana, South Dakota, Alabama, Arkansas, Missouri, Oklahoma), laws on the books set to be “triggered” by this decision are now in force. In a range of other Republican-controlled states, including Mississippi and Texas, similar laws will soon take effect. Abortion clinics are closing down. Women in need of abortions—and often the many other reproductive health services offered by these clinics—are experiencing difficulty locating options in nearby states, making appointments, and of course traveling sometimes many hundreds of miles out of state.
And it will set in motion a wave of further legislation restricting abortion and also redefining “life” that places many women facing serious threats to their health at risk of prosecution if they undertake any emergency health measures that a prosecutor might regard as endangering the life of a fetus. This is obviously a disaster for women and for all physicians and health professionals who serve women and families. The disaster is obviously inflected by race and class inequalities, and it will be especially harmful to women who are poor and those who live in rural areas and red states.
Beyond this immediate effect, the decision represents a broader attack on the very idea of a “right to privacy” and to the liberal ideal of personal autonomy with which this right is associated. As I put it in a recent piece, “This Right-Wing Attack on Abortion Rights is a Direct Attack on Liberal Democracy” itself.
Isn’t it the case that a legal act along the lines of Roe v. Wade should be passed by Congress, instead of leaving the matter to the Supreme Court?
Yes, it is true that reproductive freedom as a constitutional right in the U.S. has always rested precariously on a Supreme Court decision regarded by many as controversial and not on a major piece of legislation. This is an uncomfortable fact for abortion rights advocates to acknowledge—though in my view it has no bearing on the moral claim for abortion rights or even, in a more complex sense, on the constitutional claim that such rights are implied by “substantive due process.”
But it is one thing that politically distinguishes abortion rights from civil rights and voting rights—which were codified in national law by the Civil Rights Act of 1964 and the Voting Rights Act of 1965. At the same time, the fact that Voting Rights Act was a law did not prevent the Supreme Court from eviscerating it in its 2013 Shelby v. Holden decision.
In an ideal world, the only way to ensure the right to an abortion is via federal legislation (or a constitutional amendment). But given the current balance of forces and the anti-majoritarian features of the U.S. constitutional system, this is impossible. The theory and the practice of democratic legitimacy for all of these rights is thus now rendered more defensive and more complicated.
The Supreme Court has recently issued a series of controversial decisions. Could you discuss the general significance of these rulings? Also, what does this contemporary political reality of a firmly conservative majority in the Supreme Court mean for the American political system?
In this most recent Court term, three decisions are considered by liberals and progressives to be most troubling: the Dobbs decision overturning Roe; the West Virginia v. the EPA decision that undermines a wide range of regulatory processes and invalidates most forms of the discretion federal bureaucracies have long relied upon to enforce regulatory laws; and the New York Rifle v. Bruen decision that calls into question virtually all gun regulations in the U.S. via an incredibly broad (and patently not “originalist”) interpretation of the Second Amendment.
These rulings, and the likelihood of similar rulings in the future, represent a general assault on progressive social policy and environmental regulation, part of the broader ideological attack on the so-called “deep state” that is a central feature of Trumpism. The Court, powered by the three Justices appointed by Trump, is now in the grip of far-right ideology.
It means that progressives, leftists, and left liberals are now fighting a steeply uphill battle to defend important principles and practices that indeed have much public support, but no longer have organized political power behind them, and confront very determined, mobilized, and resourceful opponents. The Court is playing a very important role in advancing a far-right agenda by any means necessary.
It would be a mistake to focus narrowly on the nine Justices on the Court and the “aristocratic” and anti-majoritarian dimensions of the Court’s legitimacy. For the current Court is the product of decades of intellectual, professional, and political mobilization by right-wing legal institutions such as the Federalist Society and has a real mobilized movement behind it. At the same time, it would also be a mistake to ignore the long-term damage to liberal democracy that is likely to be inflicted by the six conservative judges on the nine-member Court.
Is overturning Roe v. Wade a turning point in American politics? As I understand it, the worry is that American politics could now change direction and the social and political gains of the recent decades could be lost. What’s your view on this?
Yes, these Court decisions, and especially the Dobbs decision, is part of a broad assault on liberal democracy. There is something particularly eye-opening about the way Dobbs so strongly and clearly negated a half-century of legal precedent and normative evolution regarding the rights of women. But these decisions relate to a very broad Republican assault on civil rights and liberties, racial and environmental justice, and democratic equality, and they did not come out of the blue.
The political institutions and the social and economic infrastructure of liberal democracy have long been decaying in the U.S.—a point made by so many political scientists in recent years, none more influentially than Steven Levitsky and Daniel Ziblatt’s How Democracies Die. The rise of Trumpism in 2015 was a morbid symptom of this process that became an even more dangerous disease of its own. We have been in a very challenging struggle to defend and deepen liberal democracy that has been going on for many years now, and that is now entering a very decisive phase with the November elections.
In this context, the January 6th deadly attack on the Capitol by Donald Trump’s supporters, which happened after Trump had lost the presidential elections to Joe Biden, seems to be the symbolic event. The Committee investigating the case has recently disclosed a lot of information about what has happened around and on that day. Which of these findings are the most important and what is their general meaning?
I can easily and quickly answer this question by referencing a piece that I published at The Bulwark on July 1: “Keep Your Eyes on the Prize: Defeating Trumpism.” In this piece, I argued that there are two main “takeaways” of the hearings. The first is that Donald Trump and his associates were engaging in a deliberate, planned effort to undermine the law, overturn an election, and to incite a violent assault on the Capitol to pressure Congress to refuse to certify Joe Biden’s victory or at least to delay the certification and throw the process into confusion. The revelations associated with this have been riveting and indicate that Trump and his fellow conspirators are liable to criminal prosecution by the Justice Department.
The second takeaway is that while some individual Republicans refused to go along with Trump to the bitter end, most Republicans went along with him very far, and the entire party represents a threat to liberal democracy—a point vividly made by retired conservative Republican U.S. Judge J. Michael Luttig in his testimony before the committee.
This is the important “general meaning”: one of the two major parties in the U.S. is an “anti-system” party that threatens liberal democracy, and this party must be defeated in November and in 2024. Whether or not Trump and his cronies pay specific civil or criminal penalties for their acts is less important than the political justice that must come from decisively defeating Trumpism politically.
Or maybe these are just normal conflicts within democratic boundaries, not very different from the conflicts that American politics has known in the past? As in: Democrats are anti-gun and Republicans are pro-gun; or as in: the Supreme Court once upholds racial segregation and at other times strikes it down, either way doing its job in line with the rules of the existing constitutional order.
Both parties contain differences and factions. But the two main parties in the U.S. are fundamentally different kinds of parties. The Democratic party is a relatively “big-tent” coalition of interest groups and individual political entrepreneurs that has a real policy agenda however weak the agenda is and however spineless many of its leaders are.
The Republican party is now a thoroughly Trumpist party whether or not its standard bearer in 2024 is Trump or Ron DeSantis or whoever. It is hostile to liberalism, public education, science, progressive government, and the legitimacy of political opposition. In its racism and conspiracy-mongering, and in its efforts to roll back voting rights and fair elections, it is poisoning public discourse and attacking foundations of democratic legitimacy. Don’t take my word for it. Judge Luttig said it clearly: “the former president and his party are today a clear and present danger for American democracy.”
A skeptic might ask: If this really is a decisive moment, a possible break away from democracy, how precisely is it different politically from what happened in American politics in the past?
Of course it is a decisive moment. As the January 6 Committee is making clear, never before in the history of the U.S. has a major candidate much less a sitting president lied about and sought to overturn the results of an election and retain power through a coup. Never. The moment is grave. How decisive it will be is for historians to figure out. We can’t know.
There are relevant historical analogies: before the Civil War, during the 1930’s. Obviously we are not (yet!) on the verge of a literal civil war or the threat of a Nazi takeover or a complete breakdown of authority. Is the current Republican party fascistic, and might it take over in ways that bear similarities to the way Mussolini’s party-movement took over in Italy during the interwar period? Many serious historians and political scientists think the answer is yes. At the same time, all historical analogies have their limits. The point is that the Republican party and its leader have done terrible things, and continue to ignore or justify these things, and are doing more terrible things, things far beyond the pale of “normal” electoral competition in a constitutional democracy.
This is why so many sane former-Republicans are no longer Republicans. The major cable news network, MSNBC, is a veritable refuge for former Bush and McCain Republicans who have broken decisively with their former party because they think it must be defeated for the sake of democracy. So too the Lincoln Project, and The Bulwark, a major anti-Trumpist periodical founded by former Republicans like my friend Bill Kristol. I refer you to last October’s “Open Letter in Defense of Democracy,” drafted by my friends Todd Gitlin, Bill Kristol, and myself, signed by over 40 prominent public intellectuals left and right, and published simultaneously in formerly neoconservative The Bulwark and the liberal New Republic. I am far from alone in thinking that the U.S. is currently at an inflection point.
Is Trump likely to be the official Republican candidate in 2024, regardless of January 6th committee’s findings?
He is clearly the front-runner. And his “Stop the Steal” rhetoric has captured the Republican party base. He may falter, or be indicted, or simply decide that it is easier for him to do what he has been doing while sitting in Mar-a-Lago and making money than it is to campaign in 2024. Who knows?
There are others who want to run, either against him in a primary or surely if he fails to run again. I do not believe that any possible Republican candidate will break with Trumpism. The most likely alternative to Trump, Florida Governor Ron DeSantis, is Trump with more brains, i.e., perhaps more dangerous even than Trump. Mitt Romney is an irrelevant outlier in the Republican party. Liz Cheney and Adam Kinzinger have both been excommunicated by the party for breaking with Trump after January 6. Mike Pence is a religious fanatic who steadfastly defended Trump through the November 2020 election—and his heresy on January 6 means his career as a national politician is dead. If any Republican wins in 2024, it will be bad for democracy.
How should Democrats respond to this reality?
The big danger is that the Republicans will retake the House, and possibly the Senate, in November, and will use their Congressional power to end all investigation into the corruptions of Trump and to relentlessly investigate Biden and his family and perhaps even to impeach him. This will also have all kinds of terrible policy implications, though I will ignore these for now.
The Democratic party is pretty hollow, its leadership pretty geriatric and lacking in energy or vision. The party is also hampered by the obstinacy of Senators Joe Manchin and Kirsten Sinema, who have truly undermined the Biden legislative agenda and weakened Biden and the party. Beyond the work being done by the January 6 Committee, I do not think there can be a single “Democratic” response to this situation right now except to relentlessly campaign against the Republican party and its reactionary agenda, and to keep control of the House and Senate in November. With a few possible exceptions, this means that every single Democratic incumbent must win, and people who care about democracy ought to do what they can to help make that happen. Especially in midterm elections there is no single blueprint for this. I love AOC and “the Squad,” and these exciting and energetic young legislators are capable of winning in their districts and of building support over time. But this does not mean that their platforms or profiles can win in “red” states like my own, or “purple” states, or even many parts of “blue states.” And right now nothing is more important than forestalling a Republican takeover.
I identify with the left liberal, “progressive” wing of the party, and strongly support the approach and the agenda of the Progressive Caucus and its leader, Rep. Pramila Jayapal. But it is too early right now to say exactly how the Democratic platform in 2024 ought to look. Right now, we face what my sorely-missed friend Todd Gitlin called “an all hands on deck moment.” And so right now, I think what is most important is for Democrats to run effective campaigns that highlight the party’s very broad commitment to liberal democracy, civil rights—this year especially abortion rights!—and progressive government. With a real majority in Congress, Democrats can do some good things. The Republican party, on the other hand, has no real policy agenda. But it does have resentment on its side, and Fox News, and most evangelical Christian churches . . . and the benefit of gerrymandering and the voting rights restrictions it is currently putting into place. It will not be easy to hold back a “red tide” in November.
Joe Biden presented himself as the candidate who could bring together the centrist and leftist segments of the Democratic Party. How is he doing so far and why does he look rather weak in the polls?
I posted this recently on Facebook, and I stand by it: “Biden has fulfilled his historic mandate—being ’Not Trump’–and has done a fair job under incredibly difficult circumstances—the Covid pandemic, the economic crisis the pandemic generated, the political crisis attending his inauguration, and a Republican party dedicated to undermining his success and his very legitimacy. But his moment has passed”.
Biden was able to deliver an important “American Rescue Plan.” But he was unable to follow through on his “Build Back Better” agenda and was equally unable to push through legislation on voting rights, police reform, gun control, or labor law reform. He has suffered mightily because of the obstructions of Manchin and Sinema. But he has also suffered because he has projected too little energy, done too little to use his “bully pulpit” effectively, and done almost nothing to inspire or to energize base voters who played an important role in his victory. His response to the overturning of Roe has been tepid. He has also done a good job in dealing with the Russian invasion of Ukraine. He has been less good in other foreign policy domains.
Do you think that Biden should run for a second term?
I do not think that Biden is a “bad” President. I never thought he would bring forward a new New Deal. He has faced serious challenges and obstacles and has lacked the mandate and the Congressional votes to do great things.
But he has been listless; his “bipartisanship” shtick has been a huge failure; and he has done whatever he can do already. He is a very flawed figure, a very mediocre and uninspiring “leader,” and an old man who has obviously slowed and whose ideas about ‘institutional memory’ are antiquated. He does not have the energy, the charisma, or frankly the record to run again as the standard bearer of a Democratic party serious about defending and extending democracy.
He did turn out to be the person who stood between us and Trump in 2020. His time in office thus far has been very shaky. Most of that is hardly his fault. But he is now a vulnerable incumbent who can no longer represent what he represented in 2020—banality in the face of Trump’s destructive megalomania.
The best thing Joe Biden can do for his reputation and historical stature is to spend the next two years doing what he can within his executive power to defend liberal democratic institutions and then to bow out gracefully and allow a real primary contest to mobilize activists and voters and generate some enthusiasm. The only thing that might save the republic moving forward is enthusiasm among Democratic leaders and within the Democratic base. And the best hope to generate this enthusiasm is a real competition for leadership of the party.
It remains to be seen whether such a reenergization of the Democratic party is possible. But if it is not, our already dark times are likely to quickly become much darker.