Activists on the left are beside themselves with “frustration” and “anger” over Joe Biden’s failure to respond to the Supreme Court’s decision in Dobbs. The president has folded like an old army cot in response to the challenge presented by the overturning of Roe, progressives fume, just as he did when he encountered resistance to his legislative agenda. As the left of his party gnashes their teeth in the general direction of the White House, the White House clucks its tongue. “Joe Biden’s goal in responding to Dobbs is not to satisfy some activists who have been consistently out of step with the mainstream of the Democratic Party,” outgoing White House Communications Director Kate Bedingfield sniped. A storm is brewing.
This tension is yet another consequence of the conservative legal movement’s victory over Roe. The president’s far-left flank remains fixated on the policy outcomes that have and will follow Dobbs, which leaves them confused as to why the administration isn’t responding with policy-oriented solutions. By contrast, the White House remains focused on the new legal environment that the decision produced. In the process, it has confirmed that the right’s judicial philosophy has secured an even more sweeping victory than merely overturning Roe and Casey. Faced with the immovable object of an originalist judiciary, the president is deterred.
“As President Joe Biden faces calls for more drastic action on abortion, the legal team vetting his options has found itself preoccupied by a single pressing concern,” Politico reported earlier this week. “That any action they could take would simply be struck down by the very court that put them in this place.” The administration’s lawyers believe that a poorly calibrated response to the Court’s decision could “backfire,” opening the door to “even more severe limits” on executive authority.
This admission represents nothing less than a triumph of a multigenerational campaign of conservative judicial thought. Not only have the right’s arguments against the ephemera that created a constitutional right to abortion succeeded but so, too, have their efforts to incept in the judiciary a philosophy that rejects reflexive deference to the exercise of executive power. Rather than mount a slapdash assault on this new paradigm, Joe Biden’s White House is keeping its powder dry and placing the onus on the federal and state legislatures to do the work of legislating. In so doing, the Democratic president has reaffirmed the whole point of the conservative legal project.
Surely, progressive activists will continue to demand some grand, futile gesture from the administration, and they may yet succeed in convincing the president to do something reckless and quixotic. But the principle the White House is acknowledging with its inaction is precisely the one conservative legal activists have long advocated.
“Judges are not meant to solve our country’s biggest problems,” the Federalist Society’s Leonard Leo wrote, “that’s the work of the elected branches of governments and private, cultural institutions.” That principle is meant to constrain “judicial overreach” and the organs of executive power, but it was also designed to dissuade conservatives from asking “judges to do too much and go too far.” In other words, it is a consistent doctrine with universal applicability. Notably, this is not an argument in favor of “judicial restraint.” As the Cato Institute’s Roger Pilon wrote in 1991, near the outset of the right’s long march through the courts, a deferential judiciary legitimizes “the majoritarianism that grew out of the Progressive Era” when it presumes the constitutionality of executive actions that are justified by nothing more than exigency.
Counterintuitively, it may be the American right that fails to appreciate the scope of conservative judicial philosophy’s triumph. In June 2020, Sen. Josh Hawley fired off a broadside attacking “the conservative legal project” and originalism itself. It was too patient, too prudent, and too devoted to the faithful interpretation of constitutional text even at the expense of the interests of the faithful. “The bargain is that you go along with the party establishment, you support their policies and priorities—or at least keep your mouth shut about it—and, in return, the establishment will put some judges on the bench who supposedly will protect your constitutional rights to freedom of worship, to freedom of exercise,” he scoffed. “How has that worked out for us?”
As a vehicle for the senator’s grander political ambitions, attacking his fellow conservatives for lacking a “fighting” spirit suffices. But he’s articulating a misapprehension of what the conservative legal movement was “fighting” for; not combat but deterrence, a fight that never had to be engaged because the aggressor in this analogy never fired the first shot. Whether the senator can summon the consistency to acknowledge this victory remains to be seen. Joe Biden certainly has.