The trouble can be traced all the way back to the 1844 presidential election, in which James K. Polk narrowly defeated Henry Clay for the presidency. In terms of the popular vote, the race was close: 49.5 percent to 48.1 percent. As has so often happened since, the Electoral College result distorted reality, leaving Polk’s 170–105 margin looking like a more convincing win than it was. As it happened, he carried New York and Pennsylvania, the most delegate-rich states, by just 1 and 1.9 percent, respectively. As we like to say today: Turnout matters.
Why did this one matter? Because the Democrat Polk campaigned openly on the by-any-means-necessary annexation of Texas, while Clay and his Whig Party opposed it. Once in office, Polk set about trying to fulfill his promise. He first attempted to bribe Mexico, which wasn’t interested. Then he just invaded. The Republic of Texas ended at the Nueces River, north of the Rio Grande, but Polk sent his armies south. In other words, we were the aggressors, a point worth reflecting upon in this week of our overdue departure in defeat from another country we invaded. There, Polk ginned up a Mexican attack on U.S. soldiers into a casus belli; we declared war and won. Congress, as usual in such matters, went along—although a freshman Whig congressman from Illinois challenged Polk’s aggression. But Abraham Lincoln’s position was a minority one, and it was so unpopular he didn’t even seek reelection.
That, in a nutshell, is how the United States got Texas. And I haven’t even mentioned: The whole point in wanting to nab Texas for the Southerner Polk, who owned a number of slaves, including about a dozen children, was to expand slavery.
Fast-forward to this week, when Texas has managed to hit a kind of trifecta of reactionary hideousness. The legislature finally passed its notoriously restrictive voter suppression law Tuesday, which Governor Greg Abbott has said he will sign. The vigilante-encouraging and hyper-restrictive abortion law took effect, as well. And in addition to all that, another law kicked in on September 1 (you may have missed this one!): Texans can now carry firearms in public without a license or background check and training. This was just one of a dozen gun laws that went into effect.
But let’s focus on the abortion law because it achieves a new level of black-hearted genius. By empowering private citizens who haven’t been harmed to file civil suits against anyone who abets a woman in getting an abortion, the state is creating in effect a vigilante army to harass priests, doctors, friends of women seeking abortions … parents of girls seeking abortions. It’s hardly difficult to imagine some latter-day Christian evangelical version of Gladys Kravitz suing the parents of the 17-year-old girl next door who is pregnant and seeks an abortion. Think about that. Family values.
Just before midnight Wednesday, the Supreme Court, by 5–4, decided not to grant a pro-choice group’s request for an injunction to stop the Texas law from taking effect. The majority, in its one-paragraph decision, stipulated that, for the moment, it was finding only that the “applicant” (the pro-choice petitioner) hadn’t demonstrated that it would be “irreparably injured absent a stay” and punted on the question of the law’s constitutionality.
The vigilante aspect of the law seems to be precisely what saved it. The applicant was Whole Woman’s Health, an abortion services provider that operates in Texas. The main named defendant—along with the usual “et al.”—was a judge named Austin Reeve Jackson, whose Twitter pagefor a disinterested, balls-and-strikes-calling jurist—is pasted with words like “Liberty or Death. God and Texas! Faith, Freedom, and Family.” The court majority wrote that it wasn’t clear the defendants would enforce the law, and that in any case the state represented that “neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.” In other words, the cynical ploy worked just as intended.
Yes, matters have reached the point where I’m writing God Bless John Roberts, who sided with the three liberals and called bullshit on the private-citizen enforcement aspect of the law: “I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”
Well, yeah. What Texas is doing here is outrageous. I’d love to see some liberal state legislatures around the country figure out some issues on which they can create vigilante enforcement battalions—something to do with guns, maybe, or trans people’s rights. But liberals would probably never do that, and for good reason—they understand that that way lies anarchy. Republicans aren’t troubled by such matters. They have pushed for vigilante power in this country in more ways than this one. What was January 6, after all, if not a vigilante insurrection against the Constitution itself, now defended by treacherous know-nothings like Representative Madison Cawthorn, who called those arrested for so obviously breaking the law “political hostages”?
And who is naïve enough to believe that any of the five justices who held as they did on this injunction are going to turn around next year, when deciding that Mississippi abortion case, and say, “Gee, we find that limiting abortion access below Roe’s 22 weeks is unconstitutional after all”? Right.
It is tragic and infuriating to think that Roe v. Wade won’t live to see 50 (which would happen in January 2023). That after a half a century, the U.S. will leave the company of the vast majority of the Western world and join the ranks of nations where women’s rights are under assault in a range of ways. It makes me ashamed.
And as much as Republicans hate Hillary Clinton, they have on this matter practiced what she preached: It really has taken a village of obstructionists to stack the court. Amy Coney Barrett only made it to the federal bench in the first place because then-Senator Dan Coats spent a full year blocking Barack Obama’s nominee to the vacant Indiana seat she went on to hold. Charles Grassley, who chaired the Judiciary Committee at the time, took no action on the Obama nominee, keeping the seat open for Donald Trump to fill.
But somehow, it’s fitting that this sad endgame is emanating from Texas, which, from Polk’s war to the (prolonged) end of the Civil War to Lee Harvey Oswald’s bullet to its overwhelming opposition to civil rights to today, has been a moral blot on the nation. If only Clay had won.