Cast your mind back to 2016 for a moment, when it seemed a lock that Hillary Clinton would win the election, and nominate a leftist to succeed Justice Scalia. (Remember that Hillary refused to commit to re-sending the nomination of Merrick Garland—a clear signal to progressives that she’s pick someone younger and more progressive.)
Mark Tushnet, one of the leading leftists at Harvard Law School, let loose with his id in a blog post about what progressives should demand from the Court once they had tipped the balance. Here are a few key excerpts, with commentary:
1. A jurisprudence of “wrong the day it was decided.” Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided. My own list is Bakke (for rejecting all the rationales for affirmative action that really matter), Buckley v. Valeo (for ruling out the possibility that legislatures could develop reasonable campaign finance rules promoting small-r republicanism), Casey (for the “undue burden” test), and Shelby County. (I thought about including Washington v. Davis, but my third agenda item should be enough to deal with it.) Others will have their own candidates. What matters is that overruling key cases also means that a rather large body of doctrine will have to be built from the ground up. Thinking about what that doctrine should look like is important – more important than trying to maneuver to liberal goals through the narrow paths the bad precedents seem to leave open.
Comment: This is pretty much what the conservative Court did this term, so what’s the problem? How can you call the Court “illegitimate” for agreeing that it could overrule old cases on grounds that they were “wrong the day it was decided,” and inventing “a large body of doctrine from the ground up”?
2. The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry for culture wars, which describes conservative activists, not liberals, using the term.) And they had opportunities to reach a cease fire, but rejected them in favor of a scorched earth policy. The earth that was scorched, though, was their own. (No conservatives demonstrated any interest in trading off recognition of LGBT rights for “religious liberty” protections. Only now that they’ve lost the battle over LGBT rights, have they made those protections central – seeing them, I suppose, as a new front in the culture wars. But, again, they’ve already lost the war.). For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.)
Comment: Skip over the egregious rhetoric in this blast, but note that it appears the “culture wars” are not over, and it may not be going as well for the left as they think. Just ask VA. Governor Terry McAuliffe.
Let’s skip to the last one:
6. Finally (trigger/crudeness alert), fuck Anthony Kennedy. I don’t mean that liberals should treat him with disrespect. But defensive-crouch liberalism meant not only trying to figure out arguments that would get Kennedy’s apparently crucial vote (not so crucial any more), but also trying to milk his opinions – and more generally, obviously conservative opinions – for doctrines that might be awkwardly pressed into the service of liberal goals. . .
Charming, as always. Of course, Tushnet did add this throwaway at the end:
Of course all bets are off if Donald Trump becomes President. But if he does, constitutional doctrine is going to be the least of our worries.
Actually it looks like the change in constitutional doctrine is going to be President Trump’s most significant legacy. No wonder leftists are so miserable right now. They think they are entitled to the Supreme Court.