Playing for Keeps: Practical Politics After Roe

Playing for Keeps: Practical Politics After Roe

I can’t change Texas’s law, but you can. You can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.

Justice Sonia Sotomayor

There is a great deal to dislike about the topography of political and legal power in America today. The levers are too numerous, too clunky in their construction, too easily exploited by entrenched interests and bad actors. Much has been written about how this might be changed; I have written a great deal myself. But politics does not wait for governance reform. While we sit around wishing for a better nomination system for the Supreme Court, the actual Supreme Court is overturning Roe v Wade and gutting federal protections of voting rights. While we dream of a more reliable system of free and fair elections, state governments mount the greatest assault on election integrity in a generation. For trans children and their parents, and LGBTQ people in general, for women, and for everyone, the stakes of politics are as high as they have ever been.

I cannot find it “enraging,” as Melissa Gira Grant put it, that an idea expressed by “some Democratic lawmakers” (and by Justice Sotomayor) is that “it’s on us to vote our way out of this.” We are a democracy, however imperfect, and voting “our way out” of legal arrangements is fundamentally necessary and that is not going to change. But of course, Grant is also right that we should not rely only on legislative, presidential, or gubernatorial elections to protect the rights that need protecting.

Liberals therefore need to be focusing first and foremost on making use of what levers we can get to protect the rights that we can. As Steven Teles put it:

Liberals need to adjust their political strategy and ideological ambitions to the country and political system we actually have, and make the most of it, rather than cursing that which they cannot change.

I don’t think we should have elected judges or prosecutors, but as long as we do, we need to fight for ones that will protect people’s rights and show mercy. I don’t think we should have legislatures picked through single member districts, but as long as we do, we ought to find ways to minimize gerrymandering. I don’t think we should have primaries, but as long as we do, liberals ought to make use of Republican primaries when this will maximize their political influence.

In order to protect LGBTQ people seeking marriage and medical treatment, women seeking abortions, and even rights such as freedom of speech which appear to be on firm federal footing, we need to make use of every lever we can. We need a “50 State Strategy,” but one that is not limited to the confines of the DNC’s infrastructure.

Where we can, we need to push to codify the rights we care about not just in law, but in state constitutions. This holds not only for versions of medical privacy and autonomy that would protect access to abortion and gender confirmation procedures, and of course for same sex marriage, but even for relatively settled rights like freedom of speech. 

The current federal free speech regime we take for granted does not spring fully formed from the text of the First Amendment, but rests instead on First Amendment case law that really began in 1964 with New York Times v. Sullivan and was further developed from there. Indeed as early as 1977 Justice William J. Brennan, the author of the Sullivan opinion, worried about how reliable the Court’s stance on freedom of speech and other rights might be in the future, and called on state courts to take strong interpretations of the rights enumerated in their own constitutions. In order to encourage this, we ought to actively codify the gains made in federal case law by amending the particulars of freedom of speech and other rights at the state constitutional level. Now more than ever, liberals ought not to rely on the Supreme Court as a guarantor of rights when devising political and legal strategy.

Where amending state constitutions is not feasible, we need to push to legislate protections. State Democrats often rest on their laurels when the Supreme Court has done the work for them. As their constituents, we ought to do everything we can to discourage such complacency.

Liberals in red states will have to be the most strategic of all. They already have officials in jurisdictions in which liberals are concentrated engaged in pitched political battles with officials at the state level; much of the “anti-CRT” legislation in Florida and elsewhere is aimed not at empowering parents, as its propagandists claim, but at imposing conservative curriculum demands on school districts where liberal parents reside. In locales where liberals predominate, they should continue to work through the Democratic party apparatus to get the best possible outcomes locally.

However, it is important to remember that we do not truly have parties in a meaningful sense in this country. We have the machinery of the primaries, which bestows upon some selected persons a particular party brand name. Because voters are either loyal to party brands or simply use them as a shorthand for what they can expect from the candidate, it is more or less a norm that one only votes in the primaries of the party one intends to vote for in the general. But there is nothing disloyal or devious about bucking this norm. The primaries are just instruments, and liberals ought to use them as they best see fit.

In red states, this means first and foremost punishing incumbent governors and state legislators who pursue vile tactics like seeking to separate trans children from their parents. Even if there are no good alternatives within the Republican field, forming a voting block that will punish incumbents through their primaries if they overreach could allow red state liberals to punch above their weight in state politics.

And of course, in so-called “purple” states, Democrats need to be encouraged to pass bills protecting important rights as soon as they hold the power to do so. In Virginia, even though the Republicans have taken control again, they have not, as of this writing, actually altered the abortion laws there were on the books. Often, even though politicians may say they are committed to something, they hesitate to see it through because actually doing so risks a backlash at politically inconvenient moments. It may well be that Virginia leaves its laws on the books for now only to repeal it after the midterms, but that is still precious time during which people will have access to legal abortions when they might not have. Laws enacted by future Democrat administrations to protect this and other rights may have at least this staying power if control changes hands yet again.

This dynamic, of course, also cuts the other way: just because we get Democrats into power does not mean that they will use it. And the composition of a Democrat legislative majority matters a great deal. Nothing will do more for the whole range of issues liberals care about than expanding the majority in the Senate so as to change who the marginal caucus vote rests with. Right now Democrats are poised to lose both houses in the midterms, but that is not foreordained. If your Senator, whether currently Republican or Democrat, is up for election, it is essential that you turn out to vote Democrat. And if you have a sitting Republican Senator and your primary has yet to come, you ought to vote strategically in the Republican primary.

It is very easy to fall into despair, to discount the value of the basic work of democracy when its results are uncertain and may be a long time coming. Or, for those of us living relatively privileged lives less touched by the sharp edges of politics than more vulnerable communities, to indulge in a symbolic politics, a spectator’s politics.

But now is the time to attend less to the theater of power than to its exercise, to take actual actions which shore up liberal rights wherever and whenever we can. We need what victories we can get, and no victory is ever final. That is the reality of democratic citizenship.

Featured Image is Women’s March Against Donald Trump, by Fibonacci Blue