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Is Scalia’s Burial Mound the Hill Social Conservatives Should Choose to Die On?

Against the necessity of foredoomed last stands.
supreme court

I know I’m a bit late to the memorial on this one, but I wanted to respond to Ross Douthat’s call for a “perhaps-foredoomed but still necessary last stand” on the part of social conservatives in response to the passing of Justice Scalia.

The heart of Douthat’s case is the following:

Since 1968, the year that the modern right-of-center political majority was born, Republican presidents have made twelve appointments to the Supreme Court; Democratic presidents have made just four. Yet those twelve Republican appointments, while they did push the court rightward, never delivered the kind of solid 6-3 or 7-2 conservative majority that one might have expected to emerge. Instead, John Paul Stevens, David Souter and Harry Blackmun all went on to become outspoken liberals, Blackmun and Anthony Kennedy went on to author decisions sweeping away the nation’s abortion laws and redefining marriage, Sandra Day O’Connor and Kennedy both ratified Roe v. Wade — and so on down a longer list of disappointments and betrayals.

Meanwhile, none of the four recent Democratic appointees, whether “moderate” or liberal, have moved meaningfully rightward during their tenures. On the crucial cases of the last decade (including the cases Stern lists) they’ve reliably voted as a bloc. The most genuinely unpredictable of the four, Stephen Breyer, is basically crusading to eliminate the death penalty already. The more moderate of President Obama’s two appointments, Elena Kagan, has voted with the more liberal Sonia Sotamayor more reliably (especially in 5-4 decisions) than, say, Scalia voted with John Roberts. And the court’s only actual swing vote remains, of course, a Republican appointee.

So telling Republicans that they should accept a moderate liberal lest they risk a real liberal is likely to inspire a bitter chuckle, since from the perspective of conservatives they risk at least a moderate liberal in practically every appointment anyway. (Including the last Republican president’s, since most fairly or not many conservatives feel they dodged a bullet with Harriet Miers.) And if you’re starting from that kind of disadvantage, you simply can’t afford to throw away even a chance at appointing a real conservative in the name of a play-it-safe compromise: If there’s one thing conservatives have learned from forty years of judicial appointment battles, it’s that when you compromise, you lose.

Further, you lose the most on the issues that animate the party’s socially-conservative voting base — as opposed to donors, think-tankers and the Chamber of Commerce —because it’s social issues where time and again the elite consensus has tugged Republican appointees leftward.

So it’s not just that conservatives have good reasons to be more skeptical than Stern that even a “moderate” Obama appointee would ultimately hesitate to overturn (or at least carefully undercut) some of the precedents he cites; it’s that on certain issues they have extremely well-grounded anxieties. Tell the average conservative voter that they should accept an Obama appointee in the hopes of preserving Citizens United and McCutcheon, and they’re likely to stare blankly and then shrug when you explain the campaign-finance law implications. But tell them that, despite having a fighting chance to replace him with a conservative, they should trade their great champion and bulwark on abortion, marriage and religious liberty — to borrow from one eulogy, “the mighty rearguard in our long and slow defeat” — for an Obama appointee at a moment when social liberalism is ascendant and the legal and cultural consequences of same-sex marriage are beginning to ripple across the country and the courts … well, they’ll look at you like you’re insane.

And they would be right to do so. [Emphasis mine]

I understand exactly what Douthat is saying here. But with respect, if you find yourself in a situation that “when you compromise, you lose,” the solution cannot be “never compromise”—because compromise is the nature of politics. That framing of the problem is a framing that guarantees failure. The only possible solution is to change your political situation so that new, more favorable compromises are possible.

Douthat’s complaint, in essence, is that the GOP is very careful to nominate judges and justices who are pro-prosecutor and pro-business, but are much less-careful to nominate judges and justices who are attentive to the concerns of social conservatives. But is it the case that only full-spectrum conservatives could possibly be attentive to social conservative concerns? Is it at least possible that there are pro-union, pro-defendant judges and lawyers who—perhaps by virtue of their religious faith (Mormon, evangelical Protestant, Orthodox Jewish, etc.)—are especially sensitive to the particular concerns of traditional religious believers?

If that is possible, wouldn’t it be a productive political experiment for a prominent social conservative leader to present President Obama with a list of such judges and lawyers, and say: if you pick one of these guys, we will not oppose their nomination. We will not carry water for the Chamber of Commerce on this one; if you want to make sure there is basically no chance the ACA or your EPA rules or what have you get overturned, that’s fine with us provided you give us someone who might well vote the way Scalia did in Hobby Lobby.

President Obama might well ignore the overture. But it would be useful anyway, and for three reasons. First, it would clarify just who is spurning whom, and just who is truly unwilling to compromise. Second, it would send a very clear signal to the Chamber of Commerce that the strength of their position is far from impregnable – that social conservatives are just as capable of abandoning their erstwhile allies as they are of being abandoned. And finally, it would send a very clear signal to parts of the Democratic coalition – unions, environmentalists, anti-incarceration activists, etc. – that there are opportunities for novel alliances worth exploring.

Justice Scalia, in his dissent in Obergefell v Hodges, noted the problem with having as highly unrepresentative a body as the Supreme Court—with its plurality of Harvard-educated New Yorkers – making value judgments for the country as a whole. Scalia himself  was, of course, one of those Harvard-educated New Yorkers, but his point was that such mal-representation wouldn’t be a problem if the Court stopped making value judgments—an ambition which I would argue is impossible and that I suspect most would agree is unlikely even if possible. So rather than say, “Scalia can only be replaced by another Harvard-educated New Yorker who happens to be a full-spectrum conservative,” why not say “let’s follow Scalia’s advice and make our litmus test be socio-cultural rather than ideological”? This may be going too far, but maybe Harriet Miers—or her Democratic equivalent—is exactly the type of Justice social conservatives should be hoping for, as opposed to a narrowly-dodged bullet.

Because if the only people folks like Douthat can count on to consider their particular concerns are people who also buy into the rest of the right-wing package, and yet some who accept the rest of the package will prove unreliable allies to social conservatives, then social conservatives are simply going to lose and lose again. And it’s not obvious to me how a last stand of the sort he calls for helps to change that.

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