A radical left manifesto by a 70-year-old Harvard law professor to use the nation's judiciary to crush dissent by conservatives and people of faith has gotten some attention since being posted a week ago, but overlooked by most commentators and news stories was how the plan could be crushed, aborted, laid to waste.
Mark Tushnet made headlines with his push for judges to take up "aggressively liberal positions" in the wake of Supreme Court Justice Antonin Scalia's death and the effective takeover of most federal courts by Democratic Party appointees.
About the "culture war," he wrote, "they lost, we won." Now, he says, it's time to treat conservatives and Christians like Nazi collaborators after World War II.
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"Remember," he wrote, "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.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war's over, and we won."
He had some harsh words for the one remaining Supreme Court swing vote – Anthony Kennedy. His advise in dealing with him?
"Finally (trigger/crudeness alert), f–- Anthony Kennedy," he wrote. "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. (Think here of how liberal constitutional scholars treated Kennedy's [truly silly] concurring opinion in Parents Involved ['You can deal with the consequences of segregated housing patterns by locating new school construction carefully' – in districts that are closing rather than building schools], or his 'views' about affirmative action, or recasting the Court's federalism cases as actually good for liberals.) There's a lot of liberal constitutional scholarship taking Anthony Kennedy's 'thought' and other conservative opinions as a guide to potentially liberal outcomes if only the cases are massaged properly. Stop it."
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But overlooked in all the over-the-top, warlike rhetoric from Tushnet was his conclusion – which is effectively a big "never mind" to all his prescriptions for ruling the nation through a judicial oligarchy.
"Of course all bets are off if Donald Trump becomes president," he wrote. "But if he does, constitutional doctrine is going to be the least of our worries."
Media wishing to interview Joseph Farah, please contact [email protected].