American conservatism is in the midst of a hand-wringing moment. It appears that the one allegedly unalloyed good of the Trump administration—a “remade” federal judiciary—isn’t quite generating the expected results. Last week, the outcomes at the Roberts Court weren’t that different from the expectations for a Merrick Garland court—SCOTUS expanded Title VII to include sexual orientation and gender identity, it turned back multiple challenges to restrictive gun laws, and it saved DACA.
Of all the commentary about this moment—including thundering denunciations of a “failed” conservative legal movement—I was most intrigued by Ross Douthat’s observations in the New York Times. He recalls a time when courts weren’t the decisive actors in the American culture wars:
It might surprise contemporary Americans that for most of our history, what we call “culture war” debates — arguments about rights, social justice, the moral organization of society — were often settled through democratic deliberation, rather than the kind of ruling the Supreme Court just delivered on gay and transgender civil rights. Congress debated and passed laws. State legislatures did the same. Constitutional amendments were proposed, passed, ratified — and when necessary, repealed.
His examples are legion. The nation abolished slavery once and for all through a constitutional amendment, not a judicial opinion. Court decisions aided the civil rights movement, but the Civil Rights Act of 1964 was the decisive legal act. Feminists sought an Equal Rights Amendment through a democratic process, not through judicial fiat. But, says Ross:
All of those battles belong to a lost world. Today constitutional amendments have become unimaginable, Congress barely legislates, and the Supreme Court manages our social and cultural debates. Our affirmative action system was designed by Lewis Powell and amended by Sandra Day O’Connor. The boundaries of voting rights and free expression are policed by John Roberts. Our abortion laws reflect the preferences of Anthony Kennedy. And now anti-discrimination law and religious liberty protections will reflect what Neil Gorsuch, author of the new decision, thinks is right and good.
Ross is right. And he’s especially right when he pins much of the blame for the “juristocracy” on Congress. He says, “We may officially have three branches of government, but Americans seem to accept that it’s more like 2.25: A presidency that acts unilaterally whenever possible, a high court that checks the White House and settles culture wars, and a Congress that occasionally bestirs itself to pass a budget.”
He’s also right that “politics abhors a power vacuum, and our juristocracy has claimed new powers in part because Congress doesn’t want them, a tendency that originalism is powerless to change.” But here’s what he gets wrong—that religious conservatives have been left “to make the consistent case against the judicial usurpation of politics.”
No, Christian conservatives—deeply frustrated with seemingly permanent congressional inaction—have turned to litigation at scale to fight the culture war. I should know. I helped make this happen.
Let me tell you a story, one that helps you understand why Congress is more to blame for the juristocracy than even Ross lets on (he’s being generous in saying we have 2.25 branches of government; I edge more toward 2.1) and how religious conservatives have doubled-down on the juristocracy as part of a deliberate and rational political and legal strategy.
Let’s rewind the clock 16 years. I was the new president of a relatively young civil liberties nonprofit called the Foundation for Individual Rights in Education (FIRE). At the time, America’s public universities were overrun with speech codes and other unconstitutional policies. Close to 80 percent maintained manifestly unconstitutional policies on the books, and they often enforced those policies vigorously.
I can share with you story after story of truly outrageous censorship—the kind of stuff that today would set social media on fire for days at a time. In the midst of this legal crisis, I got a call from a senior Senate staffer for a GOP senator (I’ve honestly forgotten which one.) He wondered if there was any model campus free-speech legislation. After all, a federal statute could sweep away all public university speech codes with the stroke of a pen, Moreover, free speech on campus was popular. It polled well.
No such model legislation existed (at least so far as I knew), so I pulled in the legal team, closed the door, and got to work. The model legislation we drafted was both excellent and irrelevant. We knew—even that long ago—that the prospect for “fixing” campus free speech through congressional action was nil, even if most Americans support the marketplace of ideas in America’s colleges and universities.
But the free speech problem nonetheless remained. So what do you do? Yes, you slog through state legislatures to try to pass free speech legislation, but there’s another option—one that’s guaranteed to get a governmental reaction. You can sue the hell out of America’s universities. You can blanket the country in litigation.
And that’s exactly what we did. We expanded FIRE’s speech code litigation project. When I left FIRE and formed the Alliance Defending Freedom’s Center for Academic Freedom, we built the largest conservative education-focused legal team in the country and then promptly expanded our litigation efforts well beyond speech codes.
That was just one subcategory of religious conservative litigation. “Blanket the country with litigation” was the strategy in multiple issue areas. If we could win all the cases, good. If we could win some and lose some, great. That meant a circuit split, and a circuit split meant that the Supreme Court would likely be moved to act. And then we could “settle” the issue once and for all.
Why turn to courts? It’s not necessarily because we presumed the outcome; it’s because we knew that when we filed a lawsuit, a court had to act. The judiciary is the single branch of government that has to be responsive to citizen action. A lawsuit compels a judicial response, and the law rarely, rarely permits the court to respond with a command like, “Go to Congress.”
While it was completely rational (and I think, correct) to turn to the courts to preserve free speech on campus, think of the perverse incentives my own litigation efforts helped create. Why would an enterprising member of Congress take on the very heavy lift of attempting to shepherd controversial free speech legislation through the House or Senate when he or she knew that the matter was pending before the courts?
And that’s one issue. Now take that problem and multiply it across multiple issue areas. You name the culture war controversy, and I’ll name the pending litigation. Moreover, the legislators you see railing on judges only make the problem worse. Once again, they’re claiming that justice would be done if only we picked better judges. Their functional argument isn’t so much against juristocracy but for a better juristocracy. They represent the “parliament of pundits” (hat tip to Jonah for the term) who maintain their positions and their prospects with their correct opinions, not their legislative effectiveness.
While I can take issue with judicial overreach in any given case, there is no real solution to our juristocracy problem until Congress affirmatively seizes power, until Congress is responsive enough that concerned citizens and activists see legislative action as a truly viable response to a political or constitutional challenge.
And, by the way, Congress will never again seize power if polarized primary voters continue to see compromise as surrender and punish actual legislators as “squishes” and reward poseurs as “fighters.” Behavior will not change until incentives change.
One more thing …
If you pay close attention to the wave of “cancel culture” that’s sweeping the nation, you’ll notice something important. Most of it has become blue-on-blue fratricide. It involves the left taking on the center-left, forcing apologies, firings, and public shaming even of political allies. For example, late last night and this morning, one of my favorite sportswriters and podcasters, Bill Simmons, started trending on Twitter. The reason? This New York Times article, titled “Sports Media Giant Bill Simmons Finds Himself Playing Defense.”
If you don’t know Simmons, he’s the founder of The Ringer, he’s a pioneer in sports media, he’s written and spoken millions of words, and he’s long been one of the more transparent and personable personalities in sports journalism. He’s not that political, but to the extent you can discern his politics, he obviously leans left. But despite his ideological bona fides a June 1 podcast kicked off a controversy. Here’s the Times:
The June 1 episode, titled “A Truly Sad Week in America,” was recorded as protests against racism and police violence were growing worldwide. Mr. Simmons talked about the movement with a frequent guest, the Ringer podcaster Ryen Russillo.
After Mr. Russillo, who is white, spoke of what he described as “looters” who were “breaking into sneaker shops,” he complimented Mr. Simmons on his hiring practices, praising his boss for “the jobs and the opportunities that you’ve given a diverse group.”
The Ringer union (which represents 65 of his employees) criticized a lack of diversity on staff, Simmons defended his podcasting hosting decisions by saying, “It’s a business. This isn’t open mic night.” And then Twitter was off to the races, dredging up every “problematic” thing Simmons has written or said in more than two decades of public life.
The effect of this blue-on-blue fratricide is much the same as the right-wing pile-ons that enforce loyalty to the Trump GOP. There is one way for a movement to speak, and everyone must fall in line.
The effect, oddly enough, is to simultaneously radicalize a movement and to exaggerate its radicalization. Yes, there are people who fall into line (maybe even enthusiastically) when called out. But there are others who learn a simple lesson—“Don’t say anything that can cause trouble.” The result—especially for those people who live online—is an artificial appearance of ideological discipline and extremism.
I say “artificial” in part because if you live online Joe Biden’s dominant primary win is unthinkable. It’s incomprehensible. How, if “the left” is as radical as it is, did he win? How, if “they” are losing their minds did he beat his most radical competitors, in part by running against their radicalism?
Two things can be true at once—cancel culture can radicalize a movement, but it can also foster enormous resentment and plant the seeds for its own demise. I’ve said it before, and I’ll say it again—the best response to unfairness and intolerance is for reasonable people to be brave. None of us is perfect. We can all do better. But I hope Simmons continues to be Simmons, and he doesn’t turn his site or his podcasts into the kind of product that appeases the least tolerant and most vicious element of the online mob.
One last thing …
Last night I tweeted my own modest proposal for dealing with the monument controversy—build more monuments:
And let’s begin with Union soldiers who fought and died in the Civil War. Specifically, men like Sgt. William Carney, an escaped slave who earned the Medal of Honor at the Battle of Fort Wagner, the first ever awarded to a black American. He carried the flag, was shot three times, and said, “Boys, the old flag never touched the ground.” Here is his story:
Photograph by Alex Wong/Getty Images.
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