Rod Dreher Wellness Check 6/29/20
Status: Plugging his book, still doesn't understand how anything works
Two weeks ago, the Supreme Court surprised everyone by ruling that Title VII of the 1964 Civil Rights Act protects gay and transgender employees from workplace discrimination. Before going any further, let me emphasize again, as I did multiple times last month, that the Supreme Court is still bad and is not in fact going to save us from the Trump administration. They have delivered several other horrifying decisions in this same term, and celebrating the court's unexpected decision to protect civil rights says a lot more about how shitty our current mechanisms are for protecting those rights than it does about how principled John Roberts or Neil Gorsuch are.
But today, the Court handed down another decision, June Medical Services v. Russo, that surpised conservatives: they ruled a Louisiana TRAP law (targeted restrictions of abortion providers) unconstitutional, and Chief Justice Roberts again joined the majority.
Roberts, despite what Sohrab Ahmari tweeted above, is not a secret traitor to the conservative movement, is not a misguided conservative who misunderstood the facts of the case, and was not running a fifteen-year Lucky Number Slevin-style long con to terminate as many pregnancies as possible. The case, much like the recent DACA case in which Roberts also concurred with the court's more liberal justices, is more about Roberts' disappointment in how shitty Trump and his allies are at constructing legal challenges.
Roberts is not a hero to liberals, he is not “welcomed to the resistance”, and his tombstone should read that he is the one man who brought back the era of Jim Crow in his Shelby County v. Holder decision from five years ago. But he also knows that this abortion case was nearly identical to Whole Women's Health v. Hellerstedt from a few years ago, and he knows that conservatives are just trying the exact same case again now that Gorsuch and Kavanaugh are on the court to get the opposite result from Whole Women's Health. Gorsuch and Kavanaugh voted the way conservatives expected. Roberts said, in essence, “you have to make what you're doing less blatant, you can't just ask us to try the same case again four years later now that you got more people on the court.” This is only a loose paraphrase of his actual written concurrence. He has, perhaps, the bare minimum level of shame, or concern about the public perception of the court. Alito, Kavanaugh, and Gorsuch do not possess that level of shame. Thomas, once again, operates on a different astral plane than the rest of the court, and wrote in his dissent that Roe and Casey should both be overturned (not the first time he's done this), but none of the other justices signed on to that.
Which brings us to today's new piece from Benedict Option author, American Conservative columnist, devout Orthodox Catholic, Peach Diet Snapple junkie, and aspiring freelance exorcist Rod Dreher. While Sohrab Ahmari is ready to get his roving theologian street gang together and overthrow the government, Dreher - who has titled his piece “Abortion Forever" - also laments the court's decision, but his solution is simple: please buy his book.
Plenty hs already been written about Rod's bestselling Benedict Option, but the gist is this: American society is no longer something Christians can support (his evidence for this totals up to “gay and trans people exist, and we're told we have to be nice to Muslims"), so the best thing that devout people can do is start their own self-sustaining communitiew of like-minded faithful [white straight] neighbors. There is plenty to critique in the book and its understanding of hospitality and charity, but Rod uses his piece to plug it as the only solution when the Court won't even step in to ban abortion nationwide.
Now, as a columnist, I'd take Rod over Sohrab (or several of his colleagues) any day; his writing can have a certain comforting folksiness if you forget about the awful bigotry, and he is willing to critique the Republican party. Because that's a large piece of “Abortion Forever" as well - remember how conservatives spent decades working towards a reliable court majority, even stealing a court seat in 2016 to get there, specifically to do things like overturn Roe? Well, it still hasn't happened, and there are a lot of reasons for that, and nobody has more fun than I do seeing conservative Catholics fume over this, but Rod uses it as just one more reason to give up on the current system. As he puts it:
We need the Benedict Option because we have lost this culture, and we are losing our children to this godless culture. The Supreme Court will defend the Sexual Revolution, no matter what…Roe v. Wade will never be overturned. Civil rights laws will continue to be interpreted by the High Court to favor the Sexual Revolution in all its manifestations. We are no longer a socially conservative nation, and have ceased to be a Christian nation in any historically orthodox sense. The Christian leaders who told you to be cool, and trust the Republican Party and its judges — they were wrong. Maybe they meant well, but they were wrong. If you want to be a useful pawn for Conservatism, Inc., be my guest — but please stop deceiving yourself that this strategy is a winning one.
About half of this is correct; religious conservatives are used by the actual rich people who run things to get the votes they need. Religious voters and leaders - including, of course, the bishops in my church - sold out on pretty much everything to vocally support Donald Trump in the name of ending abortion, and they look like bigger idiots every day. They should probably stop doing that.
What's incorrect is that this court is a huge fan of the “Sexual Revolution” and will never overturn Roe/Casey. John Roberts would love to overturn Roe/Casey, or at the very least have more severe restrictions on abortion nationwide (and it should be very obvious at this point that he has four colleagues happy to join him in doing so), but he also likes doing homework, and he’s asking at a bare minimum that his political allies do theirs. Here he is writing in June Medical Services today:
“I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case…The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”
In other words, “look, I hate abortion as much as you guys, but it’s the same case. I can’t just pretend this is a different case. You gotta bring a more different case next time.” In another case from this term in which Roberts appeared to be one of the “good guys”, Dept. of Homeland Security v. University of California, Roberts wrote the opinion of the court that “saved” the DACA program from being ended by DHS. But Roberts affirmed that DHS definitely has the power to end the DACA program, they just didn’t do a thorough enough job with their reasoning and thus the regents at Cal had a good case against them. Or, put another way:
“We do not decide whether DACA or its rescission are sound policies…We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”
In other words: again, guys, you need to do your homework before you come to my goddamn Supreme Court with this, and if you actually do it, I’ll actually help you end the DACA program! In fact, Roberts also used his decision to dismiss the Equal Protection claims of the plaintiffs, and specifically dismissed Trump’s discriminatory statements against immigrants as irrelevant to the case, as:
“The relevant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowledged, respondents did not "identif[y] statements by [either] that would give rise to an inference of discriminatory motive." Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts—do not qualify as "contemporary statements" probative of the decision at issue. Thus, like respondents' other points, the statements fail to raise a plausible inference that the rescission was motivated by animus.”
Yes, who could possibly know whether Donald Trump’s administration decided to do something based on possible negative feelings towards immigrants. When the Trump administration does their homework - as they did in their second attempt at a Muslim immigration ban which Roberts upheld in Trump v. Hawaii, which will be remembered as the Korematsu of our era - Roberts is all too happy to carry water for them, when he’s not busy gutting voting rights or public sector unions.
John Roberts is not the hero we need in this era. John Roberts is not a traitor to his class or his cause. John Roberts is not the reason Rod Dreher should give up on the American experiment. John Roberts is a guy that believes he shouldn’t do all the work in a fucking group project, and we got one or two lucky breaks out of it. Take a day to celebrate how mad all the worst people in the world are, and then we all go back to fighting like hell.