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PaperclipPerfector  6mo ago (text post)   28806 thread views

Culture War Roundup for the week of October 14, 2024

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To set the stage: apparently David French is a progressive liberal, now? I had heard he endorsed Kamala Harris based on his own personal cafeteria Christianity. But on Thursday he also wrote a flagrantly false-consensus-building article for the New York Times, arguing that the Supreme Court needs "reform" in the form of term limits--and furthermore, that this could even be done through legislation without being blatantly unconstitutional.

Dan McLaughlin then took him to task over at National Review, in one of the better discussions I've seen on this issue.

First, to call the Democrats’ proposals “reform” is to take partisan sides by parroting one side’s loaded talking points. . . . Second, these proposals are not “in the air.” They are not emanating from multiple sources in different places on the partisan and ideological spectrum. They are not generated by an impersonal History, before which we must simply stand aside. We would not say that building a wall across the Mexican border is “in the air.” These are the specific ideological demands of one political party. They have been pushed by a particular coterie of activists, all of whom have essentially the same desired policy ends in mind. They arose out of one party’s presidential primaries and its Senate Judiciary Committee members. They were on nobody’s agenda until after Neil Gorsuch and Brett Kavanaugh were appointed to the Supreme Court. We heard a quite different tune in 2016 when Mark Tushnet was arguing for a triumphal march of liberal and progressive ideology through the courts on the premise that “right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents. . . . Those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions.”

An honest accounting would be frank about the fact that these proposals came about for only one reason: There’s a conservative majority on the Court for the first time since 1930, and liberals and progressives don’t think it’s legitimate for our side to ever get what their side has enjoyed in the past.

The sole reason we are talking about restructuring the Supreme Court is that liberals and progressives are unhappy with the outcomes of its decisions. That’s the thing. It’s the whole thing. It’s the only thing. It’s the entirety of the thing. It’s 100 percent of the thing. There’s no other thing. And if you are endeavoring now to make a purportedly conservative (or at least non-ideological) case for restructuring, you need to first explain why it is that liberals and progressives being unhappy with outcomes is, in and of itself, a crisis. Why is it not a permissible result of a political process that liberals and progressives get something they dislike? Why is that not legitimate? Why, specifically, does it change the legitimacy of a system that was acceptable when it delivered outcomes that liberals and progressives liked?

French speaks of “instability and anger that harm the court and threaten the rule of law.” Whose anger? Why is the anger of progressives an infallible sign that something must be given to them to assuage it? Do we treat conservatives, let alone MAGA Republicans, as if the mere fact of their anger requires a restructuring of the existing rules to let them win? French typically treats the anger of Donald Trump’s devotees as a problem for the system to resist, not a cause for it to give them more of what they want.

Sorry for the length of that quote, by the way, I'm trying to not just cut-and-past the whole article, but it's really, really great. In particular, something he doesn't say outright but which I noted recently is that Democrats are "doing everything they can to disassemble any part of the system that doesn't guarantee their victory and continued ideological dominance."

Are Republicans doing the same, in reverse? I think I see as much at the state level; state legislatures, (R) and (D), seem to do their damnedest to gerrymander permanent majorities while flying just beneath the radar of watchdog authorities. But something that does not get discussed often enough, concerning the Supreme Court, is that while the Supreme Court has been dominated by progressive justices for almost a hundred years, it has also been overwhelmingly controlled by Republican-appointed justices since Nixon was in office. But for some reason, moving to Washington D.C. and taking a lifetime sinecure tends to shift people's politics leftward. Or, stated a little differently--these people are highly prone to losing what Rudyard Kipling once called "the common touch."

So here's my wonkish take for the morning: The United States of America is drowning in historically unprecedented wealth. This makes governance too easy. Keeping people happy enough to not revolt ("bread and circuses") is trivially achievable. Somehow, you can mismanage cities to the point of transforming San Francisco into an open-air sewer and still maintain total ideological dominance over the voting population. This sort of thing suggests to me that political competition just isn't happening at the object level. Party politics is approaching 100% meta--which could help to explain how a turn-of-the-century Democrat became the darling of Republican populism circa 2024. Politicians no longer offer competing visions from which voters can select--indeed, too clear a vision can be a liability to "big tent" rhetoric! The goal is not to demonstrate one's merits as a leader, a visionary, or an intellect; it is all pure meta.

Here's where someone slaps me with an "Always has been" .jpg, right? But I think that's not quite right, though I'm not sure I have anything original to say about it. I think that, throughout American history, we have had a fair number of politicians of vision and intellect, who established their merit and provided real leadership. Televised debates were probably the beginning of the end of that, but maybe just "mass media generally." We have become a nation in which politics has become the practice of demanding consensus on issues of real disagreement, even when that consensus is flatly contradictory with some other portion of the consensus.

Fake "term limits" where a lifetime appointment becomes "de jure" but not "de facto" justices is not a legitimate Constitutional approach; I suspect it is only being floated because the Constitutional approaches are politically unpopular. While Court packing (or, even more aggressively, Court impeachments) is a legitimate Constitutional approach to reforming the Supreme Court, doing do for nakedly political reasons is politically risky. People may in general be okay with politics at the meta, but if you make it too obvious, people demanding object-level politics start to look less crazy, which threatens to upend the apple cart.

So in an attempt to be the change I wish to see in the world here's an object-level take: I feel bad for David French. I would say he has lost the common touch. I definitely don't go out of my way to read his essays the way I have sometimes done in the past. I think circa 2015 I enjoyed most of what he had to say. His criticism of Trump in 2016 was not unwarranted. But the right-wing meta reacted very strongly against him, and he also gained some wealth and notoriety; he has been on a steady leftward trajectory ever since (not unlike the trajectory of some Republican-appointed Supreme Court justices)--though he maintains that it is others who have changed, not him.

Well, it's possible for two things to be true at the same time.

There's something at the core of this all, from progressives, that I fundamentally have a hard time wrapping my head around.

I grew up in the 80s and 90s in the South in a conservative religious family in a conservative community. The view of the Supreme Court was overwhelmingly that it had behaved as an unelected, anti-democratic, civilization wrecking dictatorship for half a century. If you valued freedom of religion and freedom of association in a more traditional, de Tocqueville-ian sense (with a strong emphasis on the ability of people to form and police their own communities with their own values and their own norms and their own boundaries), the Supreme Court had behaved as a wrecking ball. And particularly if you were sensitive, as most smarter conservatives I knew were, to the ubiquity of second order effects in society, the Supreme Court came across constantly as a body that was totally indifferent to, and totally insulated from, the disastrous second order effects of its dictates and airy social engineering.

BUT... well, Reagan won in a landslide, and the country had turned back to the right, and with that level of political domination, at some point the Supreme Court was going to have to reflect that political reality... or so we thought. And besides, conservatives value authority and institutions and fear chaos. There's a very deep awareness of Chesterton's Fence on a gut level. So despite those wide spread, deeply held beliefs about the Supreme Court, we just marched ahead, accepted their rulings, and tried to steer our lives around the damage they inflicted. (Also, the federal government had made it clear earlier that they would send in Federal troops from time to time to enforce Supreme Court rulings at gun point, and most people were ready just to move on with their lives)

But of course, over time, all the pipeline issues about the judiciary did become more apparent - the political domination of Reagan conservatives really SHOULD have resulted in a much more conservative judiciary than actually resulted, with much, MUCH more radically conservative rulings on all sorts of things like abortion and affirmative action and disparate impact back in the 80s and early 90s, if you were going by the feelings of voters at the time. But it took too long for conservatives to recognize the problems about where you get those judges from, and by that point, the country had moved on... or so it seemed until Mitch McConnell played the hardest of hard ball, fate intervened, and former Democrat Donald Trump got 3 supreme court picks after not winning the popular vote.

Anyway, that's my baseline for how people I grew up around viewed the Supreme Court.

And so when I see enraged public progressives and fellow travelers like David French railing against the current Supreme Court and its legitimacy, the thing I keep thinking is, the progressives I'm thinking of have built their ENTIRE moral universe around other citizens respecting all sorts of previous (as their opponents see it) destructive Supreme Court rulings from roughly the 1940s to the 2010s. Much of their moral progress stories require other citizens to simply bow down and accept and actively prop up those other rulings. They gain from the legitimacy of the Supreme Court in a way that the traditionalists I grew up around absolutely don't. Given that, it's very difficult for me to imagine a future where people upset by the current Supreme Court manage to publicly delegitimize it and mess with it AND also their opponents still accept the legitimacy of previous generations rulings. And if I'm right about that, it seems like progressives have vastly more to lose by having a much more weakened Supreme Court.

I've noted before that I often get a "born on third, thought they hit a triple" vibe from progressives when it comes to the institutions they've inherited, and their overwhelming sense that it's just natural for different institutions to lean their way - and the Supreme Court is absolutely a place where I think that is true.

Another way of putting is is that for more than a century, the Supreme Court has been the primary instrument of transforming the federal government and its sphere of influence following the progressive program. Conservatives only in our lifetimes wised up enough to set up the pipeline, as you put it, and it has only just borne any fruit in the form of walking back a bare handful of the most extreme points of that program.

We shouldn't be surprised that progressives would turn on it so quickly, because it has always been a question of what means would achieve the necessary end of transforming America and being on the right side of history. The Supreme Court was their darling because it was the most effective tool, not because of any underlying principles about the primacy of the judiciary over other branches of government.

Pre-Reagan, there was no conservative pipeline to set up. Not a lot of libertarian lawyers, after all.

It was the aftereffects of Roe that gave the federalist society ammo. When Catholics broke with the democrats there was suddenly a source of lawyers who had gone to the kinds of law schools judges go to. Before all this, there simply weren’t strongly conservative lawyers to appoint as judges.

It's a great point that the conservative judicial pipeline is almost exclusively Catholic and that Roe v Wade had a huge role in motivating intellectual Catholics to rethink their progressive association.

In Latin America, where abortion was simply off the table until quite recently, the Catholic Church tended to be associated with either the authoritarian right or center left.

This is largely because the center right is a ‘free markets first’ phenomenon, which jives poorly with Catholic teaching. Both authoritarian right wing priorities and the broad centrist center left do much better. In the USCCB there’s a division between bishops that align themselves as extremely moderate democrats and the currently dominant wing which is basically eccentric right wing republicans. Neither are particularly libertarian.

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