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Culture War Roundup for the week of October 14, 2024

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There's something at the core of this all, from progressives, that I fundamentally have a hard time wrapping my head around.

I grew up in the 80s and 90s in the South in a conservative religious family in a conservative community. The view of the Supreme Court was overwhelmingly that it had behaved as an unelected, anti-democratic, civilization wrecking dictatorship for half a century. If you valued freedom of religion and freedom of association in a more traditional, de Tocqueville-ian sense (with a strong emphasis on the ability of people to form and police their own communities with their own values and their own norms and their own boundaries), the Supreme Court had behaved as a wrecking ball. And particularly if you were sensitive, as most smarter conservatives I knew were, to the ubiquity of second order effects in society, the Supreme Court came across constantly as a body that was totally indifferent to, and totally insulated from, the disastrous second order effects of its dictates and airy social engineering.

BUT... well, Reagan won in a landslide, and the country had turned back to the right, and with that level of political domination, at some point the Supreme Court was going to have to reflect that political reality... or so we thought. And besides, conservatives value authority and institutions and fear chaos. There's a very deep awareness of Chesterton's Fence on a gut level. So despite those wide spread, deeply held beliefs about the Supreme Court, we just marched ahead, accepted their rulings, and tried to steer our lives around the damage they inflicted. (Also, the federal government had made it clear earlier that they would send in Federal troops from time to time to enforce Supreme Court rulings at gun point, and most people were ready just to move on with their lives)

But of course, over time, all the pipeline issues about the judiciary did become more apparent - the political domination of Reagan conservatives really SHOULD have resulted in a much more conservative judiciary than actually resulted, with much, MUCH more radically conservative rulings on all sorts of things like abortion and affirmative action and disparate impact back in the 80s and early 90s, if you were going by the feelings of voters at the time. But it took too long for conservatives to recognize the problems about where you get those judges from, and by that point, the country had moved on... or so it seemed until Mitch McConnell played the hardest of hard ball, fate intervened, and former Democrat Donald Trump got 3 supreme court picks after not winning the popular vote.

Anyway, that's my baseline for how people I grew up around viewed the Supreme Court.

And so when I see enraged public progressives and fellow travelers like David French railing against the current Supreme Court and its legitimacy, the thing I keep thinking is, the progressives I'm thinking of have built their ENTIRE moral universe around other citizens respecting all sorts of previous (as their opponents see it) destructive Supreme Court rulings from roughly the 1940s to the 2010s. Much of their moral progress stories require other citizens to simply bow down and accept and actively prop up those other rulings. They gain from the legitimacy of the Supreme Court in a way that the traditionalists I grew up around absolutely don't. Given that, it's very difficult for me to imagine a future where people upset by the current Supreme Court manage to publicly delegitimize it and mess with it AND also their opponents still accept the legitimacy of previous generations rulings. And if I'm right about that, it seems like progressives have vastly more to lose by having a much more weakened Supreme Court.

I've noted before that I often get a "born on third, thought they hit a triple" vibe from progressives when it comes to the institutions they've inherited, and their overwhelming sense that it's just natural for different institutions to lean their way - and the Supreme Court is absolutely a place where I think that is true.

Another way of putting is is that for more than a century, the Supreme Court has been the primary instrument of transforming the federal government and its sphere of influence following the progressive program. Conservatives only in our lifetimes wised up enough to set up the pipeline, as you put it, and it has only just borne any fruit in the form of walking back a bare handful of the most extreme points of that program.

We shouldn't be surprised that progressives would turn on it so quickly, because it has always been a question of what means would achieve the necessary end of transforming America and being on the right side of history. The Supreme Court was their darling because it was the most effective tool, not because of any underlying principles about the primacy of the judiciary over other branches of government.

Pre-Reagan, there was no conservative pipeline to set up. Not a lot of libertarian lawyers, after all.

It was the aftereffects of Roe that gave the federalist society ammo. When Catholics broke with the democrats there was suddenly a source of lawyers who had gone to the kinds of law schools judges go to. Before all this, there simply weren’t strongly conservative lawyers to appoint as judges.

It's a great point that the conservative judicial pipeline is almost exclusively Catholic and that Roe v Wade had a huge role in motivating intellectual Catholics to rethink their progressive association.

In Latin America, where abortion was simply off the table until quite recently, the Catholic Church tended to be associated with either the authoritarian right or center left.

This is largely because the center right is a ‘free markets first’ phenomenon, which jives poorly with Catholic teaching. Both authoritarian right wing priorities and the broad centrist center left do much better. In the USCCB there’s a division between bishops that align themselves as extremely moderate democrats and the currently dominant wing which is basically eccentric right wing republicans. Neither are particularly libertarian.