30 Aug Community, Culture, and the Courts
A couple of weeks ago, Ian Millhiser, a senior correspondent at the young-adult news site Vox.com, penned a long piece complaining about recent Supreme Court decisions and the negative impact he claims they are having and will continue to have on the nation. Millhiser is a lawyer, and he has written two books about the Supreme Court, and so, one would presume that he understands the subject and appreciates how and why these decisions came to be. But one would be wrong. His attempts to grapple with the fact that the courts can no longer be relied upon by the political Left to be its “legislature of last resort” are variously hilarious and shockingly self-unaware. Most importantly, however, Millhiser demonstrates unambiguously how radically the Left misunderstands American conservatism and the means it employs to achieve its ends.
Milhiser starts his grievance-airing by demonstrating his inability to see nuance and to place matters in context:
The Supreme Court’s recent opinion in Trump [v. United States], which held that presidents have sweeping immunity from criminal prosecution for any official act — even something like ordering the Justice Department to round up and arrest their political foes — is such an unimaginable betrayal of the justices’ oath to “administer justice without respect to persons” that it casts a shadow over every decision these justices have ever handed down.
It’s like if you learned that your daughter’s third-grade teacher gave her cocaine. Some acts of betrayal are so profound that they shatter your ability to trust someone again and cause you to rethink every single thing they’ve done in the past — even the good things.
Yikes. Overdramatic much? Now, I understand that there are reasons that someone might disagree with the ruling – even reasons that don’t begin and end with the name of the plaintiff in the case. But…still, that’s nuts. “It casts a shadow over every decision these justices have ever handed down.” Really? Or is Millhiser simply looking for an excuse – any excuse – to cast a shadow over “these justices?” I’m not a betting man, but if I were, I’d bet the latter.
Millhiser continues:
In the few years since former President Donald Trump remade the Supreme Court, the Court’s new majority has allowed states to nullify entire constitutional rights. They’ve claimed so much power that they now effectively control both the judiciary and most of the executive branch — they’ve literally given themselves a veto power over any regulatory decision made by a federal agency — of the federal government.
Again, yikes. Millhiser complains constantly about “the Republican Party’s successful takeover of the Court.” Do you suppose he doesn’t realize that the Court was taken over by the Democrats first, and that the Republicans “took it back” only when it became clear that that status quo was untenable? Does he not know that conservatives had their own debates for years about how to deal with a Court that had “usurped” the power of the people and was a risk to democracy? Is it possible that an “expert” on the Supreme Court has never heard of (much less read) the famous First Things symposium on the Court from 1996? Millhiser is an early Millennial, and it shows. He thinks that all of this is happening to him and his “side,” and that nothing like it has ever happened before. History began the day he was born.
Finally, Millhiser gets to the heart of the matter and to the heart of his misunderstanding:
The Republican takeover of the federal judiciary, and the rush of decisions overruling seminal Supreme Court precedents that quickly followed, was the culmination of decades of organizing, fixating on decisions that Republicans wanted to see overruled, campaigning against those decisions as illegitimate, and identifying candidates for judicial office who could be counted on to overrule those decisions….
Republicans — whether at the grassroots level or through elite groups like the Federalist Society — identified the cases they wanted to destroy. They united in opposition to them. They appointed justices who would loyally follow the GOP’s judicial agenda. And then they won.
Yes, the conservative/originalist takeover of the Court was “the culmination of decades” of work, but not in the ways that Millhiser imagines. Republicans didn’t sit around and “fixate” in unanimity about these decisions. And they didn’t simply turn to “elite groups” like the Federalist Society to identify cases that would enable their scheme. Indeed, when conservatives first set about to retake the courts from the Left, the Federalist Society didn’t even exist. Like everything else in the tale of the “remaking” of the Supreme Court, the Federalist Society had to be built from scratch – and that’s exactly the point.
From 1973 on – and even before, in some cases – conservatives understood that their interpretations of the Constitution and the American republic were being undermined by the courts. But they also realized that this was no accident, that the Democrats were able to take over the courts and were able to remake the “living” Constitution because the people, as a whole, consented to it. The people voted for Democrats (in Congress especially), and they accepted much of the “change” that their votes enabled. If Republicans wanted to change the new judicial status quo, they knew they would have to change the people’s collective opinion. They would have to change the culture so that the people would accept their positions and enable their changes, as they had the Democrats’. And THAT’S what they set about doing.
The Federalist Society was founded in 1982, not as an “elitist” institution, but as a student group, a collection of law students who wanted to find like-minded individuals and to join with them to push back, collectively, against the Leftist orthodoxy in law schools. As the group evolved, it took on a more educational role and then a more functional role in preserving the originalist interpretation of the Constitution. It was and is an operation built from the ground up to identify, organize, educate, and support people who share a similar perspective. It is about as pure an example of building a community and altering the culture by doing so as exists in contemporary American society.
Millhiser and the rest of the Left don’t see that, of course. They see only the nasty boogeyman that identifies conservative judges for Republican presidents to nominate. They don’t understand community or fighting to win back the culture. Both are entirely foreign to them.
The same, not coincidentally, took place in less formal terms in the attack on Roe. Again, one might expect an “expert” to know this, but Millhiser apparently does not. Roe was overturned in 2022. That’s almost three decades after conservatives began the process of actively trying to change the culture on the issue of abortion.
In 1994, the Republicans in Congress were preparing for the historic election that fall, the election that would sweep them back into the majority in both houses for the first time in nearly half a century. At the same time, conservatives and Pro-Life activists were planning their own efforts. Two very influential and authoritative conservative organizations, “Project for the Republican Future,” and the “Ethics and Public Policy Center,” jointly proposed a new political position paper for pro-life Republicans that would represent a significant departure from their past adamant efforts to include a call for a constitutional amendment banning abortion in the party’s platform.
These two organizations, headed by William Kristol and the inimitable George Weigel respectively, suggested that the GOP continue publicly to declare its opposition to abortion, but shift its tactical role away from attempting the overturn of Roe v. Wade and concentrate instead on efforts in the individual state legislatures to “curb the incidence of abortion by seeking maximum feasible legal protection for the unborn.”
“We support,” their statement read, “efforts to return to the people their constitutional right to deliberate on this question in their legislatures. We endorse state-based efforts to expand the boundaries of legal protection for the unborn. And we flatly reject the use of public funds, at the state or federal level, to pay for or encourage abortion.”
In essence, their position acknowledged existing law, which allowed states to impose some legal restrictions on abortion and, more to the point, recognized “the need for an extensive and ongoing process of public persuasion.” Kristol, for his part, called strategy “Lincolnian,” in the sense that Lincoln wanted to turn away from slavery gradually while preserving the union. According to Kristol, he and Weigel wanted to end abortion gradually, without further injuring a society that he said had been “deeply divided by the abortion debate for over a generation.”
As it happens, the basic argument for a change in Republican tactics on abortion was previewed two years previously, in the June/July 1992 issue of Fr. John Neuhaus’s First Things, in an article titled “Abortion and Political Compromise,” written by Christopher Wolfe, Professor of Political Science at Marquette University. Wolfe relied heavily on St. Thomas Aquinas to make his case, which later was adopted, wittingly or unwittingly, by Kristol, Weigel, and eventually most of the future GOP Congressional majority.
According to Wolfe, the way to achieve practical progress and accommodation on the matter of abortion was to heed Aquinas, who, Wolfe wrote, “says that laws imposed on men should be in keeping with their condition, for (quoting Isidore) law should be ‘possible both according to nature, and according to the customs of the country.’” Additionally, Wolfe argued, Aquinas also maintained that “the danger of imposing on imperfect men precepts that they cannot bear is ‘the precepts are despised, and those men, from contempt, break out into other evils, worse still.'”
Over the course of the next decade, the Republican majority, more or less, followed the path laid out by Kristol and Weigel, and managed to gain a handful of political victories. Most notably, they ensured that funding for abortion would come to be seen not a basic function of government, but as a radical position. They also eventually won the battle over the late-term abortion practice that came to be known as “partial-birth” abortion, eventually banning the procedure.
More to the point, the Pro-Lifers in the GOP won the war for the hearts and minds of the people, through Kristol’s and Weigel’s “extensive and ongoing process of public persuasion.” By focusing on cautious and practical advances in abortion policy, the Pro-Life side forced its opponents (the purportedly Pro-“Choice”) side into the uncomfortable and yet undeniable position of extremism. Whereas the Pro-Choicers were out in the public square refusing, adamantly and sometimes expressively, to make any concessions, the Pro-Lifers were winning the argument, calmly and unassumingly insisting that all they wanted was to end the legal sanction of doctors sticking scissors into babies’ heads as they moved down the birth canal. As it turned out, then, the change in tactics permitted the Pro-Life side to change policy, to change minds, and to change the public opinion of the movement. No longer the “radicals” in the game, the Pro-Life side succeeded in gaining support and turning the proverbial tide of the debate.
Contra Millhiser, conservatives did not merely identify cases to overturn, appoint judges, and win. They took the time – decades – to build consensus and change the culture.
We have long argued that the key to understanding politics is to remember that Washington is not where the big decisions are all made. It is merely the place where the score is kept.
Nothing illustrates this idea better than the conservative “takeover” of the Supreme Court. Likewise, nothing illustrates the Left’s failure to understand the power of localism, community, and culture than its current whining about that takeover.
