The appointment of a new US Supreme Court justice will inflame the culture war, it is feared. This is hopelessly optimistic. Whoever replaces the late Ruth Bader Ginsburg will decide on more than abortion and the right to bear arms. She (President Donald Trump pledges to name a woman) will also determine Washington’s power to regulate business and provide services. “Gods, guns and gays” was never a fair digest of US politics: the distributional questions that absorb other democracies engage this one too.
The coming schism will be as much economic as moral. The stakes go beyond the permissive society to encompass the welfare state. A lasting rightwing hold on the court could damage the left’s most cherished achievements.
But then it could also injure the court. Achieving a 6-3 majority on the bench would crown half a century of work by organised conservatives. The movement knows with ominous clarity the liberal reforms that its judges must erode or undo. What should trouble it more is their popularity with the public.
Roe vs Wade, the 1973 ruling that construed a right to abortion, is the ultimate example. According to the Pew Research Center, 70 per cent of Americans say it should not be overturned; 61 per cent believe that abortion should be legal in “all or most cases”. More worry that states are making it too difficult rather than too easy. No doubt, the broad figures conceal a world of nuance. Lots of Americans are open to restrictions that stop short of a ban. But others wish Roe had gone further.
Obamacare, another conservative target, is almost as daunting. The decade-old programme, born in such acrimony, has stabilised. Slightly more Americans now want it expanded than repealed. The Republicans’ crusade against it more or less cost them the House of Representatives in 2018. It is not clear that voters would be any happier if a court, rather than a legislature, struck it down.
Yet more incendiary would be a tilt against green laws as millennials and Gen Z gain ground in the electorate. Conservatives want the Supreme Court to narrow the federal government’s regulatory powers under the Clean Air Act and other statutes. By crushing margins, though, Americans want the state to do more, not less. If this reads like an easy thing to tell a Gallup pollster, most also specify that environmental imperatives should take precedence over economic growth; and 73 per cent, including half of Republican voters, say regulations should be more strongly enforced.
Conservatives are entitled to shrug at these and other appeals to public opinion. The Supreme Court is there to parse the law, not the polls. The whole point of lifetime tenure is to screen judges from political vicissitudes as they do their duty by the nation’s founders.
This is so lovely a thought, it is almost a shame that it is fantastical. The judiciary need not worry about electability, no, but it must mind its legitimacy. If the court bucked public opinion too much it would start to bleed the stuff. Without the sword or the purse, it risks being packed with loyalists by a Democratic president, as was threatened in the 1930s, or defied outright.
No one understands this better than the jurists. Sandra Day O’Connor, Anthony Kennedy and David Souter were Republican-appointed judges who dismayed the right with their subsequent decisions. John Roberts, the present chief justice, a reliable conservative, helped save Obamacare in 2012.
Now, it is possible that all of these are characters of damnable perfidy, laughing at the saps who appointed them. More likely, though, they are institutionalists. They know that the Supreme Court can only veer so far from mass opinion without endangering itself. This is not treachery, it is statecraft.
The American right has a recurring blind spot. It is awesomely well drilled and ruthless at pure politics. Democrats have no Mitch McConnell, who should be able to herd his Republican Senate majority behind a Trump nominee. The trouble is that politics is well downstream of the general culture. Public mores set the broad parameters of what governments can ever do. And the organised right does little about these beyond curse their liberal drift. By the time battle is joined in Washington, it is mostly over.
The Supreme Court can launch a judicial revolution from the right, then, but at risk to itself and the party that enabled it. Don’t be surprised if even a 6-3 majority settles for gradual incursions into the left’s body of work. This would show a concern for tangible institutions over abstract projects and a willingness to let sleeping dogs lie. “Conservatism”, we might call it.