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.
True, conservatives have recently won religious-liberty and free-speech cases in the Supreme Court. But we have been litigating only because we have been losing more broadly. Jack Phillips — the Colorado baker who declined to create a wedding cake for a gay couple — won. But he was playing defense in a civil rights enforcement proceeding and fought in court for years just for the chance to pursue his business with his integrity intact. Anti-abortion pregnancy resource centers in California won a free-speech claim this term — but they were just one vote away from being forced to advertise state-subsidized abortion.
Conservatives must put such tactical victories in broader perspective. We must be clear-eyed about where the real fight lies. Wherever that is, it isn’t at the next Senate confirmation hearing.
This is so very true. We cultural conservatives may preserve our liberties at the Court, but that does not change the culture. This is the point I keep making about The Benedict Option. This binary choice — either Christians must stay engaged fully in political and legal battles, or withdraw entirely — is false. Yes, Christians must stay engaged, but it is folly to believe that political and legal victories are the most important ones. The real fight lies, as professors Walsh and DeGirolami recognize, elsewhere.