by Neil H. Buchanan
In the aftermath of the liberal outcomes in the Supreme Court's recent marriage equality and health care cases, some commentators suggested that those outcomes would actually be good for conservatives, especially for the Republican presidential candidates. In my Dorf on Law post last Wednesday, I acknowledged the logic behind that assertion, in that the Republicans could now choose to put aside their increasingly unpopular positions on both issues. Although the evidence of the last week suggests that the Republican candidates are refusing to accept this generous gift from the Court, that could merely be a death rattle. Or maybe not.
What was truly odd, in any event, was the claim that these landmark rulings would serve to clear away the distracting wedge issues that Republicans have foolishly pursued, and that dropping those obsessions would now bring them back to their strengths. That argument was offered succinctly by former Minnesota Governor Tim Pawlenty, who was quoted in a New York Times news analysis article: "Whether the presidential candidates agree or disagree with the results
of all this, it allows them to say these issues have been settled and
move on to things that offer more of a political home-field advantage." Most of my post last Wednesday was essentially a long-winded way to ask: "Things like ... what, exactly?"
Seriously, what are the issues on which the Republicans have a political home-field advantage? Although that Times article helpfully noted that "Republicans contend that America is still receptive to a more conservative approach on economics and national security," the only supporting argument that the reporter offered was to suggest that there are "limitations of economic populism, as organized labor was [recently] unable to block a measure giving President Obama expansive trade authority." This, however, is a non sequitur. It is sadly true that Obama joined with Republicans to ram through fast-track trade negotiating authority, but that does not mean that economic populism is unpopular or that Republicans have a natural advantage on issues of trade. It merely means that Obama was willing to ignore workers' interests in order to push through a supposedly legacy-defining accomplishment. That Obama joined with conservatives to pass a bill favoring multinationals' interests is not an argument that "America is still receptive to a more conservative approach" to anything. It just means that Obama is willing to toe the neoliberal line far too often.
As part of my discussion of the ways in which Republicans might respond productively to the Court's recent decisions, I noted a comment by conservative outcast David Frum, who was quoted in the same Times article as follows: "Every once in a while, we bring down the curtain on the politics of a
prior era. The stage is now
cleared for the next generation of issues. And Republicans can say,
‘Whether you’re gay, black or a recent migrant to our country, we are
going to welcome you as a fully cherished member of our coalition.’ ”
Summoning all of the subtlety and understatement that I could muster, I characterized Frum's point as saying "that one can be a good conservative without being a gay-baiting, racist,
immigrant-bashing neanderthal." Although I believe that Frum made his point in good faith, I then said that "I am not actually sure that he is right
about that." I have been thinking about why I expressed doubt about that assertion, in particular whether I am really willing to say that one cannot be a conservative without also "being a gay-baiting, racist,
immigrant-bashing neanderthal." Acknowledging that my rhetoric was deliberately provocative, I am still doubtful on the merits that Frum is right. I will use the balance of this post to explain some reasons why I think that he is, in fact, probably wrong. The analysis relies heavily on the age-old debate about intent versus results.
The easiest way to argue that conservatives cannot be socially progressive and still be conservative, of course, is to point to the current state of the Republican Party. The Presidential candidates are not some randomly selected group that happened to skew toward extremism on immigration, gay rights, racial issues, and everything else. They are clearly aligned with -- or pandering to -- the views of the party's base. Even Wisconsin Governor Scott Walker, who had been a hard right-winger on economic issues but not a fire-breather on social issues, has recently either revealed his true feelings or has opportunistically morphed into a born-again social neanderthal.
Note also that even Frum did not include women in his peroration. We cannot know whether this exclusion was meant to deliberately rule out a more open-minded approach by conservatives on reproductive matters and workplace issues, but certainly the Republicans have made it clear that they are not letting go of their longstanding social conservatism regarding women. Even if the party does ultimately give up the ghost on the ACA and marriage equality, on the theory that "the issues have been settled in the courts and it's time to move on," the Republicans are barreling forward toward the half-century mark in their unwillingness to view Roe as having settled the question of choice on abortion.
As I said, however, this version of the argument is easy, and it arguably misses the point. At its core, this argument says merely that one cannot be a conservative who is not a gay-baiting, racist, immigrant-bashing neanderthal because all of the current Republican presidential candidates fit that description, and that they are reflecting the views of the more conservative of the two U.S. political parties. Obviously, however, one could reply that the more conservative U.S. party has been taken over either by something other than actual conservatives, or that the neanderthal attitudes of most current Republicans are not inherent to being conservative. Indeed, I have argued that one could be a non-neanderthal conservative and quite easily find a relatively happy place in the Democratic Party. Obama's efforts on the trade deal are merely one example of how that argument works.
The more difficult version of the argument is that, no matter which party one happens to join (if one joins a party at all), it is possible to be a true conservative on the issues that matter without harboring racist, anti-gay, or jingoistic attitudes. I imagine that this is the version of the argument that Frum was espousing. Certainly, I have met many conservatives who claim to be examples of that species. They are sure that they are not bigots, and they argue that their conservative views on issues other than social policy are simply irrelevant to their views on race and other supposedly secondary matters. In legal circles, that argument is even easier to make, because one need only aver that one's policy preferences are distinct from a belief in textualism, or some other once-removed intellectual commitment.
As I have conceded, I have no doubt that these people believe themselves not to be prejudiced or otherwise backward. But that argument is too easy in the other direction. Pretty much everyone in the U.S. knows enough to say that they are not racist, anti-gay, or anti-immigrant. (Donald Trump, as always, is an exception.) Chief Justice Roberts claims that his vote against marriage inequality was essentially procedural, not based on animus. And I believe that he believes that to be true.
Yet we cannot ignore the consequences of what people actually advocate, merely because of what they claim are their well-meaning motivations. At some level, people must be considered capable of knowing what their actions and opinions imply. In Roberts's case, his separation-of-powers analysis would result in the continuation of unequal treatment of gay couples who wish to marry. Even if Roberts reaches that view in sorrow rather than in Scalian anger, he is still taking a position that is harmful to gays.
Similarly, consider the oft-heard claim that economic conservatism simply means "fiscal responsibility and belief in free enterprise." Yet the result of people holding such views in the U.S. today is that policies that would partially redress the racial imbalances in economic opportunity and outcomes are off the table. "We can't do that, because it requires deficits, which are bad for future generations" is ultimately a dodge, because at best, it boils down to saying, "I choose future economic growth over helping a disadvantaged population today that is composed disproportionately of minorities, women, and immigrants."
I suppose that one could say, "But I'm a different kind of conservative. I believe in fiscal responsibility, but that simply means that I don't believe in running deficits, so I'm in favor of spending programs that have a positive disparate impact on people of color, and I'll pay for it by advocating higher taxes." At that point, however, it is necessary to remind ourselves that words do not mean whatever a person wants them to mean. Being a high-tax conservative is conceivable, one supposes, but it starts to look a lot like liberalism.
The conservative economic agenda generally favors less government action to deal with social problems, which means that conservatives oppose existing and proposed programs that have obvious racial and gendered effects. Being in favor of the conservative agenda, and either ignoring or discounting the resulting harm to real people, means that one is choosing policies that have racist and sexist impacts (even though, in terms of sheer numbers, many of those victims are actually white men, a la "What's the Matter With Kansas?"). I can readily concede that these avowedly well-meaning conservatives do not talk like Trump or O'Reilly, but they pursue pretty much the same policy agenda.
In the end, then, is it possible to be a "conservative without being a gay-baiting, racist,
immigrant-bashing neanderthal"? My tentative answer at this point is, "Yes, as a matter of attitude, but not as a matter of substance." I would not call any of my conservative friends, family members, or colleagues neanderthals, and not just to be polite. In that context, intent matters. But unless one redefines conservatism to mean something that is utterly idiosyncratic, the fact is that most conservative domestic policies (economic and otherwise) have impacts that are disproportionately harmful to minorities and women. That is bad for the people who are harmed, of course. The good news is that it has implications for political outcomes, too.