by Michael Dorf
My Verdict column for this week addresses the claim by Senator Mitch McConnell and other Republicans that confirming a nominee of President Obama to the Supreme Court would deprive the American people of a voice in the selection process. I previously termed this claim absurd, and I don't back down in the column. In this accompanying post, I want to pull back momentarily from discussing Justice Scalia's successor to linger over the man himself--and where he fits in the story of the conservative movement over the last five decades.
Antonin Scalia was a seemingly unlikely champion of the common folk--an opera-loving, Harvard-educated personal friend of people in the highest places who, when criticizing his colleagues for their supposed elitism, once put the point in this most un-common way: "When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins--and more specifically with the Templars." Yet in defending the prerogatives of the powerful by invoking the rights of the commoners, Scalia was a perfect exemplar of the modern conservative movement spawned by Richard Nixon, perfected by Ronald Reagan, and now possibly coming apart at the hand of Donald Trump.
Prior to the 1960s, the Republican and Democratic Parties were not as ideologically coherent as they have since become. For example, on matters of racial equality, northern Republicans were on average about a standard deviation more liberal than southern Democrats--a seemingly durable legacy of the Civil War and Reconstruction. LBJ's support for national civil rights legislation began a trend that Nixon's "Southern Strategy" accelerated and expanded as, over time, cultural conservatism came to include not only hostility to the claims of racial minorities but also opposition to abortion, gay rights, gun control, and various other agenda items of liberals and progressives. The people who would come to be known as "Reagan Democrats" did not necessarily support the GOP's more traditional efforts to keep taxes on the wealthy low and to limit regulation of businesses, but they took the deal. For their part, the people formerly sometimes known as "country club Republicans" accepted the cultural conservatism they didn't necessarily endorse in exchange for the social conservatives' acquiescence in policies that aimed to block redistribution (except for redistribution from poor to rich).
This was always a precarious political alliance, but it held for a long time and reached its most refined articulation in the jurisprudence of various Republican Supreme Court justices, especially Scalia. Along with his fellow Republican-appointed colleagues, Justice Scalia was highly pro-business. Reviewing data from the 1946-2011 Terms, Professors Epstein, Landes, and (Judge) Posner found that Scalia was in the top-most-pro-business quarter of justices--although, interestingly, he was the least pro-business of the five Republicans who served together over the last decade. (In the same 66-year period, Alito and Roberts were one and two--depending on which measure one uses, they flip--followed by Thomas and Kennedy at five and six--with the same qualifier--and then Scalia at nine. (See Table 7 in the article linked above). Thus, although Scalia appears to have been the median justice on business cases during the Roberts Court, that's moderation only if grading on a generous curve. A veteran of the Nixon and Ford administrations before his appointment to the DC Circuit and the the Supreme Court by President Reagan, Scalia was very comfortable promoting the country club Republican agenda.
But Justice Scalia was even more comfortable promoting the social conservative agenda, in which he believed deeply. With the exception of his views on the Sixth Amendment and on some First Amendment questions, Justice Scalia was an extremely reliable vote for the culturally conservative position, whether it meant invoking some constitutional provisions to strike down gun control, voting rights legislation, and affirmative action or calling his liberal colleagues judicial activists for relying on those same (and other) constitutional provisions to strike down abortion restrictions, the death penalty, and laws restricting the freedom of LGBT Americans.
In an insightful critical discussion of Scalia's legacy on Slate, Eric Posner marvels at how Scalia could accuse his fellow justices of ideologically-inflected judging while failing to notice that his own voting pattern was no less ideologically predictable than than that of his colleagues. (Posner rightly notes that the few exceptions--such as Scalia's First and Sixth Amendment votes--prove little: No judge votes his ideological druthers in every case; the legal realist charge is that ideology matters a great deal, not that impersonal legal materials don't matter at all.)
To my mind, the mystery of Scalia's blindness to the large impact of his own ideological priors on his judicial behavior is no mystery at all. Just as a fish doesn't know he's wet, Scalia was unaware of his own status as a conservative culture warrior because he held his culturally conservative convictions so firmly that they appeared as self-evident truths to him. How else to explain the fact that in the same dissent in which Justice Scalia casually dismissed the idea that gays and lesbians count as an oppressed group because they "enjoy enormous influence in American media and politics" (twenty years ago, mind you!), he accused the justices in the majority of "tak[ing] sides in the culture wars"? Or that, in his zeal to read the Fourteenth Amendment's Equal Protection Clause as a mandate for "color-blindness," he repeatedly made a simple and obvious error about what words appear in the text of the Clause?
I do not rehash these decades-old unpleasantries to speak ill of the dead. On the contrary, I genuinely mourn and miss the man. My point is rather that Justice Scalia's excesses--in the substance of his opinions and in his attacks on his colleagues--are explicable only as an expression of his passionate embrace of cultural conservatism.
He was almost but not quite the last of his kind. Justice Scalia leaves behind on the Court two colleagues who likewise embody the post-Nixon conservative marriage of economic and cultural conservatism. Although neither Clarence Thomas nor Samuel Alito can match Scalia for bravura, in addition to their deep conservatism, each occasionally approaches Scalia levels in channeling the anti-supposedly-liberal-establishment ressentiment characteristic of the cultural right. Justice Thomas is at his most animatedly peeved when resenting race-conscious government programs. Interestingly, so is Justice Alito, although for somewhat different reasons, one guesses.
Speaking of anger, I come to Trump. Running as a Republican, Trump has vacillated between adopting traditional conservative positions and thumbing his nose at them. The nose-thumbing is more pronounced on economic issues, where he has rejected conservative (and centrist Democratic) orthodoxy on free trade, but Trump's embrace of cultural conservatism is also highly suspect to anyone who has paid attention to his expressed views over the years. Senator Ted Cruz put the point offensively in deriding Trump's "New York values," but he was not wrong.
Where the Republican establishment may be wrong about Trump is in assuming that the "low-information" voters drawn to Trump are mostly misled into thinking that Trump is a genuine conservative. It seems at least as plausible that they find Trump appealing despite the fact that he is not genuinely conservative because they are not genuinely conservative in the sense of holding strong commitments on the litmus-test social issues for the conservative movement over the last four-plus decades. Put provocatively, the people who have been grudgingly swallowing the country-club Republican agenda as the price to pay for the social conservative agenda's inclusion in the Party platform may not even be all that socially conservative. Perhaps anti-abortion, anti-gay, pro-gun, anti-tax, anti-immigrant, and borderline (and not-so-borderline) racist views are mere epiphenomena for the Trump demographic. The anger born of insecurity is primary. By tapping into the anger and insecurity, Trump earns something like a free pass on issues.
To be sure, there have long been people who are genuinely conservative across the range of issues. Antonin Scalia was exhibit A. But if Scalia hadn't existed, Richard Nixon, Ronald Reagan, and Roger Ailes would have invented him. The seeming staying power of Trumpism within the Republican electorate reveals, however, that modern conservatism may be in deeper trouble than anyone thought. It's not just that the core demographic is aging and shrinking. Nor are the tensions between economic libertarians and social conservatives inherently unmanageable or new. The problem is deeper. For all of the awfulness of Trump himself, the fact of his appeal to many Republican voters should be a hopeful sign for liberals. It signals that even many self-identified conservatives do not in fact care much for the key commitments of the modern conservative movement.