Fascism, Apparently, Is When the Left Loses

The Supreme Court restrained Trump and upheld women’s sports on the same day—and exposed the emptiness of the accusation

So I guess the Supreme Court and the United States Constitution are not the spawn of Satan when you like the results. All of a sudden, the fascism magically becomes irrelevant.

On the same day, the Supreme Court ruled in Trump v. Barbara that Trump’s attempt to restrict birthright citizenship violated the Fourteenth Amendment, while ruling in West Virginia v. B.P.J. that West Virginia and Idaho could reserve women’s and girls’ athletic teams for biological females.

Same Court. Same Constitution. Same system of judicial review. In one case, the Court restrained Trump’s executive authority. In the other, it upheld a conservative policy that progressives opposed.

Whether you agree or disagree with either decision, and regardless of who dissented, that is just it: we have a Constitution. It is a large part of what makes this country what it is. Yet somehow, the Constitution becomes the aggressor when it does not work in your favor. When the Court’s rulings are not in your favor, it is fascism. When the Court restrains Trump and produces a result you like, the supposed fascism suddenly disappears.

The American system is architecturally designed to mitigate authoritarianism by preventing any one branch of government from exercising complete control. Its separation of powers and system of checks and balances allow each branch to restrain the others. And despite years of warnings that Trump has transformed the country into a fascist dictatorship, that system has continued to work. The president issued an order. The order was challenged. The judiciary reviewed it. The Supreme Court ruled against him.

The president did not control the Court. His appointment of several justices did not guarantee their obedience. The Court did exactly what it is constitutionally empowered to do.

The problem is that constitutional legitimacy has become entirely dependent on outcomes. If a case is decided in their favor, the system has protected democracy. If the same Court reaches a conservative conclusion in another case, democracy is suddenly collapsing.

Consider Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. The Court held that the Constitution does not confer a right to abortion and returned the issue to the people and their elected representatives. It took the question out of the hands of the federal judiciary and returned it to the political process. Structurally, that is the opposite of consolidating power under one authoritarian ruler.

People may vehemently disagree with the ruling. But disagreement with the outcome does not make the decision fascist. Nevertheless, progressive publications immediately described the decision as the work of a “fascist gang” and evidence that “Christian fascism” had arrived.

The same pattern appears with women’s sports. The Supreme Court upheld state laws reserving women’s and girls’ athletic teams for biological females. Ensuring that men are not occupying women’s sports has been treated as another manifestation of fascism, even though the opposite demand is itself coercive.

It requires women to comply with something that is not based on physical reality. It requires them to reconfigure how they understand and experience themselves internally, physically, and psychologically. It asks them to surrender their boundaries, athletic categories, and opportunities to accommodate a political understanding of sex with which they may fundamentally disagree.

That is also a form of coercion. That is also the exercise of institutional power. Yet when women are protected from that demand, it is the protection itself that gets labeled authoritarian.

This is what has made the term fascism increasingly vacuous. Abortion restrictions are fascism. ICE enforcement is fascism. Border security is fascism. Restrictions on gender-affirming care are fascism. Sex-separated sports are fascism. Conservative court decisions are fascism. The DSA itself has described Trump’s program as a “fascist agenda” and insists that “to beat fascism, we need socialism.”

And yet, the people who cry fascism have shown us all along that much of this is projection.

The country is becoming increasingly populated by self-described socialists and communists whose political objectives are fundamentally hostile to the Western liberal order. The Democratic Socialists of America explicitly says that capitalism “must be replaced” with democratic socialism. Its own Housing Justice Commission states that its end goal is “the abolition of private ownership over land and shelter” and its replacement with social housing.

That is not merely a proposal to increase social spending or adjust tax rates. It is an explicitly stated objective to replace the existing economic order, beginning with property ownership and landlords.

Yet all the fascism is supposedly coming from the other side.

The deeper problem is the socialist left’s disdain for Western democracy, the Constitution, and the history and principles of this country. Otherwise, they would not believe that the existing order must be replaced by socialism or communism, nor would anti-Western sentiment be so central to their politics.

The principles of individual liberty, limited government, private property, and constitutional restraint directly interfere with their objectives. Yet the mechanisms produced by those principles are also the mechanisms protecting them.

Freedom of speech protects their right to advocate for socialism. Freedom of association protects their organizations. Due process protects their activists. Constitutional limits restrain the executive branch when Trump exceeds its authority. Judicial review allows them to challenge policies in court. The system they condemn is the same system preserving their ability to condemn it.

But when those same constitutional mechanisms obstruct their objectives, the Constitution becomes the aggressor. The Court becomes illegitimate. Federalism becomes oppression. An adverse ruling becomes fascism.

It does not matter whether the preferred term is fascism, socialism, or communism. At some point, it becomes a game of semantics for the overconfident and smug to explain to everyone else what they supposedly fail to understand about each ideology. The terminology is used to control the narrative and to obscure the more fundamental problem: government overreach.

Fascism and communism are not identical. They have different histories, doctrines, and economic arrangements. But both can be used to justify the concentration of power and the subordination of individual liberty to collective political objectives. The central danger is the same one our constitutional architecture is intended to mitigate: a government with enough power to reorganize society and compel compliance without meaningful restraint.

When the Court overturned Roe, it removed an issue from federal judicial control and returned it to democratic politics. When the Court upheld sex-based athletic categories, it permitted states to protect women’s sports. When the Court rejected Trump’s birthright-citizenship order, it restrained the executive branch under the Fourteenth Amendment.

The same constitutional principles operated in all three cases.

It is simply that the people who cry fascism cheer government power when it works for them and want to tear down the institutions restraining it when it does not.

The Constitution is not democratic when you win and fascist when you lose. A political movement that recognizes constitutional limits only when those limits produce its preferred outcome does not genuinely believe in constitutional limits.

It believes in power.