the national interest

Texas’s Abortion Law Turns ‘Principled’ Conservative Legalism Into a Joke

Photo: Anna Moneymaker/Getty Images

To understand the satisfied conservative response to the Supreme Court’s cooperation with Texas’s absurd anti-abortion gambit, it helps to first transport yourself back to a different time in history. A more innocent epoch in American public life. I refer to August 2021.

At the beginning of that month, the Biden administration extended the CDC’s eviction moratorium, a moment National Review covered as though it was the death of the republic. NR ran 16 columns and editorials on the subject by my count (it’s likely I missed a few), every one of which denounced the measure in angry, ominous, and and even hysterical terms.

NR had substantive disagreements with the policy, but its fury focused specifically on Biden’s willingness to implement a policy knowing full well the Supreme Court would likely strike it down. NR presented this move as a prima facie assault on the rule of law, hammering again and again at this unforgivable maneuver.

“Not only has Biden announced that he is going to ignore the legal judgment of a majority of the Court, his stated justification for doing so is that he can get away with it because it will take time for the issue to reach the Court again,” thundered one column,He just thinks that he can get away with breaking the law while the issue works its way up to the Court again.”

“Some, apparently including Laurence Tribe, suggested [Biden] take the risk [of a Court reversal] anyway since it would buy time,” observed another apoplectic column. “So much for the rule of law.” Editor Rich Lowry scolded, “The true test of devotion to our system is if public officials honor it even when it produces unwelcome outcomes, or whether they try to find extra-legal workarounds.” One column implored Republicans to shut down the Senate in protest, and another urged mass civil disobedience with the order.

One incriminating phrase NR’s contributors kept repeating was that Biden had “gamed the system” by extending a policy and counting on a legal delay to allow it to take effect, even though it wouldn’t pass legal muster. “By admitting that he is gaming the system,” wrote Charles C.W. Cooke, “President Biden has thrown down a precedent-smashing gauntlet.”

John Yoo — yes, the torture guy — employed the same terms. Biden’s decision:

merely attempted to game the judicial system … Democrats claimed, unjustly, that President Donald Trump had made dictatorial moves. They are openly and unapologetically defending such moves under Joe Biden … near-dictatorial power and to sweep constitutional traditions into the fire. … It is true that this moratorium on evictions has yet to work its way up through the courts. But that should not matter — not only did the lower courts strike down almost exactly the same order already, but five justices of the Supreme Court have made clear that they believe the moratorium to be unconstitutional.

If your eyes glazed over during these extensive, redundant arguments, let me summarize: National Review believes gaming the judicial system by leaving in place a policy the Court is likely to strike down poses a threat to the rule of law as dire as any in modern American history.

Indeed, NR’s contributors laced their denunciations with sarcastic gibes at critics of Donald Trump, whose crimes were apparently no worse. “Remember that during their next lecture about how to protect American democracy,” intoned Lowry. “Big day for the ‘norms’ crowd,” snarked Cooke in (another) piece.

And so it seemed to be a great cosmic joke that fate put these convictions to the test just a few weeks later. Texas enacted abortion restrictions in explicit violation of the Constitution. And did it by, yes, gaming the system.
That bill openly and unquestionably defies settled constitutional law — banning abortion six weeks after conception, not even close to the permissible standard set by Roe and Casey. What spared the Texas law from being immediately struck down is that the legislature designed a workaround: Rather than being enforced by the state itself, any person who abetted an illegal abortion, even by driving the woman to a hospital, would be subject to a lawsuit by any private citizen. The law’s whole design is a trick designed to prevent the court from striking it down pending review.

You might think National Review’s all-in commitment to catastrophizing Biden’s eviction gambit would force them to signal at least some discomfort with the Texas Republican gambit. Indeed, the Texas scheme is far worse, by NR’s standards, because, while at least some scholars (like Tribe) argued Biden’s eviction extension passed legal muster, absolutely nobody even pretends Texas’s abortion restriction comports with existing law.

Rather than condemn either Texas’s legislature or the Court’s five most right-wing justices for going along with the ploy, NR congratulated both for their cleverness. “In an ingenious effort to prevent abortion providers from blocking the Act from taking effect,” it editorialized, “the Act prohibits state officials from enforcing the Act in any way.”

Lowry preposterously insisted “there was no harm here” — news to women who will be forced to go to term with pregnancies they have a constitutional right to end but no longer can without risking financial ruin — and praised Texas’s ingenuity: “They have found a way to avoid injunctions on what they want to do.”

Cooke argued Texas’s law does not matter, because: “Only a fool would spend his time meditating upon the fine details of a legal fiction — and, despite a manful, decades-long effort to pretend otherwise, Roe is as much a legal fiction now as it was the day it was written.”

All those high-minded paeans to the inviolability of the rule of law contained an invisible asterisk he now reveals: It only applies to good laws (as judged by Cooke). Elected officials evading bad laws is fine, even admirable.

This denouement helps shed light on the nature of National Review’s frenzied response to the eviction moratorium, which any calm person would have recognized as a second-order issue. It is a continuation of NR’s method, dating back to Trump’s capture of the Republican nomination, of backhandedly justifying his abuses by searching for alleged counterparts by the Democrats.

The essence of anti-anti-Trumpism is not to defend Trump outright but to focus on his opposition. Trump’s sins may be too obvious to deny, but they can insist the evils of Hillary Clinton or Joe Biden exceed them. National Review’s coverage of Biden has consisted largely of frantic and often comical efforts to find matching Biden offenses that cancel out Trumpian acts they can’t explain away.

This was the allure of turning the eviction moratorium into Biden’s Reichstag fire: It was NR’s chance to even out the “violated norms” category on their invisible ledger. Indeed, they could insist that, by refusing to join in NR’s lather, it was Trump’s critics who had no concern for norms and the rule of law.

But the principle of abstaining from any policy that is likely to be struck down is not one that actually mattered to NR. They could not have guessed that mere days would pass before the principle upon which they had staked thousands and thousands of angry words was exposed as utterly hollow.

Texas Law Makes ‘Principled’ Conservative Legalism a Joke