Conservative Legal Movement Moves Steadily Left

By sebastien lebrigand from crépy en valois, FRANCE [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons
By sebastien lebrigand from crépy en valois, FRANCE [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons.

In The Devil’s Advocate, an otherwise forgettable movie, Al Pacino, playing Satan in human form, asks the protagonist: “Who in their right mind . . . could possibly deny the 20th century was entirely mine?”

One might ask the same about Progressives: Who could possibly deny that the 20th century, or at least the second half of it, was entirely theirs? The end of state and local autonomy; pervasive secularization; the meteoric rise of identity politics; and the dissolution of the traditional family, producing an astounding increase in illegitimacy rates.

Theirs, entirely theirs.

Some conservatives, however, after resisting and then losing, catastrophically, on all of these fronts, want to believe they are actually in control. This is essentially how many have responded to Decius’s devastating Flight 93 essay, which masterfully explained why he believes that we are aboard a hijacked plane. Just as terrorist Ziad Jarrah sought to calm the Flight 93 passengers that fateful day in 2001, the pundits are now telling us: “It’s just a little turbulence. The plane has not been hijacked. Everything is fine.”

As a political scientist and legal scholar, I do not believe it is part of my job to endorse a political party or candidate. And I will not breach that duty here. I write this neither as a Democrat nor a Republican, but only as a citizen who accepts the proposition, widely held among both conservative and liberal political scientists, that a vibrant middle class whose concerns constitute the core of national policy is essential to a sustainable constitutional democracy. With this in mind, I  believe it is part of my duty as a citizen to discern a little turbulence from a plane plunging toward an empty field.

I will not rehash Decius’s arguments here but I want to explore an additional reason why I believe modern conservatism is bringing this plane down: the Supreme Court and the legal conservative movement.

For years, the Republican Party has used the Supreme Court to galvanize its voters, threatening that if the Democrats get their pick, the aforementioned parade of horribles will follow. Of course, that parade has streamed by for decades. But here’s the twist: In each of the landmark Supreme Court cases leading that parade, a Republican-appointed justice wrote the controlling opinion.

Republicans like to place all of the blame on one particular turncoat: that stealthy New Englander, David Souter, who co-authored the controlling Casey opinion, upholding Roe v. Wade. Not so fast. Republicans have appointed seven justices to the Supreme Court since the early 1980s (when the legal conservative movement officially began with the creation of the Federalist Society), and of these seven, it is not just one, or two, but three who have been responsible for carrying the torch of judicial progressivism. And that number will likely soon turn to four as Chief Justice Roberts continues his evolution. Moreover, for all their bluster about originalism, Republicans have appointed only two justices who have adopted it as their principal method of interpretation.

Meanwhile, none of the justices appointed by Democrats over the last 50 years have consistently ruled in a way that could be said to favor conservative causes. In fact, over the past half-century  not a single justice appointed by either party has moved to the Right. Almost all have drifted substantially toward the Left, and some have more than drifted—the Republican-appointed Justices John Paul Stevens, Sandra Day O’Connor, and David Souter were pulled so far with the tide that they ended up on an entirely different beach.

What is the source of this ideological drift? I could explain this in complicated doctrinal terms, discussing the nature of precedent and trends in legal thought, but that would disguise a very simple fact: It is the culture.

Despite the arcane niceties of constitutional law, much of constitutional interpretation, especially in the high court, comes down to a judge’s political values. And in a society where politics flows downstream from culture, the ideology that controls the culture controls the law. So when the nation’s media, entertainment, and academic industries are controlled entirely by the Left – as has been conspicuously on display in this election—the Supreme Court’s drift toward the Left becomes inevitable and ineluctable.

Fundamental to understanding this drift is understanding the legal conservative movement itself—i.e., the movement of the elite lawyers from which the Republican appointees are selected.

A critical figure in adapting legal conservatism to leftward cultural currents has been Clint Bolick, a key architect of the movement who earlier this year was appointed to the Arizona Supreme Court. In his 1990 book outlining a legal strategy for conservatives, Bolick explained how it was a “losing strategy” for conservatives to appeal to traditional values and working-class voters. Instead, the conservative movement had to “claim the moral high ground,” which, in a culture where equality is celebrated more than liberty or tradition, requires creating a movement in the mold of the NAACP and the civil rights movement. Bolick thus prescribed conservatives to frame their causes in racially egalitarian terms, particularly as benefiting African Americans, as opposed to “chasing firetrucks to see if any members of the Teamsters Union are upset about affirmative action.”

This firetruck strategy has won some legal victories—most notably for gun rights, black entrepreneurship, and school vouchers in inner cities—but these victories have been generally isolated, limited to urban communities, and moreover, they have not won voters for the Republican Party. After the past 30 years of the legal conservative movement’s firetruck strategy of using black co-counsel, searching for black plaintiffs, and framing its arguments in pro-black terms, the Republican Party has become even less popular among African Americans.

More recently, Bolick has switched his focus to Latino voters, arguing in his 2014 book (co-authored with Jeb Bush) that because “America’s population is shrinking and aging . . . [w]e need more immigrants to stem that debilitating demographic tide.”

Moreover, Bolick and Bush concluded, “we cannot sustain a generous social welfare program . . . if we do not increase the numbers of productive, contributing participants in our work force.” This is Bolick-Bush conservatism: Bring in more immigrants to replace the native population and sustain the ever-expanding welfare state.

The result is a party that stokes the resentment and frustrations of its base by ostentatiously complaining about identity politics, while at the same time endorsing candidates specifically on the ground that they would be the first [insert traditionally disadvantaged group]. The Republican Party has become the husband who complains to his wife endlessly about his promiscuous single friend, but then prowls the Craigslist personal ads at night for hook-ups. We might not like the player, but at least he isn’t a cheater.  

How does this relate to the Supreme Court’s leftward drift and cultural trends? Over the last 35 years, the conservative legal movement has molded its political identity and values to fit a changing America, and that movement has controlled which lawyers and judges should be considered for appointment by the Republican Party.  While the conservative legal movement has made almost no advances in its goal of restoring ideological equilibrium to law schools, with law school faculties remaining above 95 percent Democrat, the handful of law professors who do vote Republican are not traditional conservatives but rather a special type of socially progressive, pro-business libertarians – i.e., libertarians who have no constitutional or libertarian objection to things like “humanitarian” war or the federal judiciary’s creation of same-sex marriage, but who do have strenuous objections to federal immigration restrictions and maternity leave policies.   

Chief Justice Roberts and Justice Kennedy are the products of these socially progressive, pro-business “conservatives” controlling the conservative legal movement. Indeed, whereas on many issues relating to tradition and localism Roberts and Kennedy have deviated from the Republican Party platform, they have signed on to this Bolick-Bush open-borders, pro-business approach to conservatism, siding with the Chamber of Commerce, for example, to rule that federal immigration policy preempts local authority over immigration reform. In fact, Roberts and Kennedy have voted more than any other justices to find that federal law displaces state authority, and they have done so at an especially high rate in cases involving business interests, in virtual lockstep with the interests of the Chamber of Commerce.

This is the only time when the legal conservative movement has consistently won on the Supreme Court—not in preserving tradition or local autonomy, but in empowering global corporations, broadening executive war power, and facilitating open borders. The Bolick firetruck strategy, by following the culture of the Left but the economics of the Chamber of Commerce, has carved the legal path for a party that apparently cares more about corporate profit, endless war, and cheap labor, than the increasingly dire plight of its great mass of voters.

Missing from all of Bolick’s bollocks about a “shrinking and aging” population and decreasing “participants in our workforce” is any acknowledgment of what has happened to our neglected “firefighters” while the movement has sought to curry favor with various minority constituencies—namely, that white Americans are the only group whose mortality rate is increasing; that rural America is experiencing a massive heroin problem; that people in rural areas are much more likely to be incarcerated than people in urban areas; and that the white illegitimacy rate is rising faster than any other group’s and now exceeds that of the black illegitimacy rate in 1965 (when LBJ famously tasked Daniel Patrick Moynihan with unraveling “the tangle of pathology” in the black family) .

That the Democrats ignore these mostly rural problems is not surprising; these are, by and large, not their voters. When something does affect their voters, however, as when the water was tragically contaminated in Flint, Michigan, Democrats rightly demand accountability. What is shocking, and morally repulsive, is that when free trade and open borders destroy majority-Republican communities, a prominent National Review writer’s answer is “these dysfunctional, downscale communities . . . deserve to die.” (Can you imagine the Huffington Post saying the same about Flint?)

The conservative movement does not seem to appreciate that it is dying alongside these communities; that it loses even when the Republican Party overwhelmingly wins state legislatures and both houses of Congress; and that it continues to lose because the party appeals to a population it does not want to help or associate with once the ballots have been counted.

After the past 25 or so years of increasing acrimony between the movement and its base, the movement has finally admitted that it has more in common with Hillary Clinton’s dream of a “common market with open trade and open borders,” and that it wishes that its own base would simply die. So is it any surprise if Republican voters now openly wish the same for the movement?

Recognizing this rift, the conservative movement’s plan is to create some sort of neo-neo-conservatism that will recruit more voters from the Democrats.

In other words, the movement would rather move even further to the Left, in an effort to pilfer more culturally progressive, business-minded Democrats, than to preserve tradition and localism for its own voters. This plan will fail, just as all other Republican outreach plans have, because there is already a political party performing that function, and it can perform it more authentically and persuasively than the Republicans.

Consider as an omen the fate of the elites’ chosen one, Marco Rubio, and how he adopted the Bolick firetruck strategy, to the pleasure of the pundits but the utter distaste of the electorate. Rubio repeatedly mentioned his Latino ancestry on the stump and in the primary debates, proclaiming, “We are the party of diversity, not the Democrats.”

Can you imagine the reverse? The Democrats screaming: We are the party of globalism and war, not the Republicans. Never. The Democrats don’t want any part of the Republican image. I wonder why.

As it turns out, Bolick had it exactly wrong: Appealing to the Left’s premises, and trying to beat the Democrats at their own game, is a losing strategy with dire consequences, not just for the Republican Party, but more importantly for millions of American families.

This is why Donald Trump is the GOP nominee—notwithstanding his style, vulgarity, and ignorance (which no one should or could defend), Trump has done one thing right: He has abandoned the Bolick firetruck strategy and hit the issues of trade, war, and immigration when no other candidate has. Indeed, before being embarrassingly sidelined with his truly reprehensible personal shortcomings, Trump had focused on the issues that matter most to the vast majority of Republican voters, people who are more concerned with conserving their local communities and traditions than with privatizing social security and lowering capital gains taxes. For this reason, the Trump campaign, gaffes and all, marks the beginning of a new American Right, a movement that will give these voters—the core of the electorate—the possibility of winning again.

Winning requires forming your own premises and narrative. It requires the wisdom to distinguish turbulence from a hijacking, a protest from a riot, and ordinary immigration from a migration crisis. When untrustworthy voices are ordering us to ignore the turbulence, to settle in and put on our seatbelts; when we are told that the people with bandanas and knives apparently preparing for war are simply our co-passengers; when we are assuaged that the impending sense of doom in our stomachs is really the anxiety before “togetherness” bliss—we need someone who will not obey the hijackers’ commands, someone who will stand up and take over the cockpit.

While Trump is clearly not the ideal person to lead the charge, it is equally clear that whether he wins or loses in November, the Republican Party and the conservative movement will not be the same after this election, because the voters have spoken: They will no longer be appeased with huddling in the back of the plane, praying that the hijackers will take a more scenic and circuitous route in our eventual descent toward oblivion.

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About Jesse Merriam

Jesse Merriam is an assistant professor at Loyola University. He holds an M.A. and Ph.D. from Johns Hopkins University and a J.D. from The George Washington University Law School.