Monday, July 2, 2018
Kevin Walsh and I have an op ed today in the New York Times about the Supreme Court, the culture, and what to hope for from whoever replaces Justice Anthony Kennedy. A bit:
[W]ith Justice Anthony Kennedy’s retirement last week, many of our fellow conservatives are suddenly buoyant. They believe everything is about to change. It is a perennial temptation. If only one or two justices had been different — a Robert Bork rather than an Anthony Kennedy, an “anybody else” rather than a David Souter — then, it is imagined, we would inhabit a different constitutional universe. The problem is simply a matter of personnel. Now at last we will get our chance to fix the country, they think.
Let us not get our hopes too high. Even if Justice Kennedy is replaced with an actual conservative, as we hope and expect, the Supreme Court cannot save a degraded culture, nor can it degrade a virtuous one — not too much in either direction, at least. Conservatives seeking lasting change are better advised to attend to our failures in the broader culture than to prepare the way for our Supreme Court savior. Otherwise, we are likely to be sorely disappointed.
Why? Because law, like politics, generally conforms to the culture. The Supreme Court is shaped by the culture that surrounds it; its instinct is to follow, not to lead. Consider the sexual autonomy cases of the 1960s and ’70s, or the cases involving civic displays of religion in the 1980s and ’90s, or the gay rights cases of this century. In each instance, the court channeled the views of a preferred emerging cultural constituency — about the sexual revolution, about secularization, about same-sex relationships — in recognizing the corresponding rights. The Psalmist was right to warn against trust in princes…
To be sure, law is important. It forms the culture around us, just as much as it is informed by it. Indeed, the Supreme Court has made itself a powerful symbol of an American yearning to resolve profound cultural conflict once and for all. It has come to exercise a potent didactic function over the past several decades. It instructs us, scolds us and exhorts us to follow it. It has become a relentless smasher and refashioner of rights.
As some feverishly speculate about which 5-to-4 decisions of the recent past will soon vanish, we counsel patience. Conservatives have rightly criticized the judicial manufacture of rights; let us not make the mirror-image mistake of urging immediate doctrinal demolition. The legal landscape may change for the better through erosion and accretion, rather than avulsion and ill-considered construction.
Chief Justice John Marshall once wrote that “a constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it.” But today, new constitutional law is born and killed off in waves in response to the felt imperatives of cultural change. This is the Supreme Court we have now, borne of the culture we have now. No bright, shiny, new justice can change it alone.