Initial Reaction to Justice Kennedy Retirement
Let me begin by noting that I am not a lawyer or political scientist or expert on the Supreme Court or any court, for that matter. So, take these words for what they are, no more and no less.
What encourages me is that Trump seems likely to appoint another justice like Gorsuch, someone very concerned with ruling carefully according to established law and the Constitution — someone who would, for example, require Congress and voters to do their jobs to stop a legal but immoral “Muslim Ban,” rather than using the SCOTUS as a check on bad policy. It’s also possible, as far too many optimistic people have expressed today, that this new appointment could lead to the overturning of Roe v Wade, which would send abortion laws back to the state level. I would rejoice over this.
However, I do have a number of concerns.
One concern is that evangelicals will allow a legitimately positive action by President Trump (assuming he does pick another good justice) as an excuse to defend his many immoral actions which have damaged our democracy. To take one small example, this past week there has been a loud discussion about “civility” which has taken place under the shadow of a man who routinely called for violence against protesters at his rallies and who has repeatedly condemned the press as the enemy of the American people. This kind of speech is not “just talk” or “some dumb tweets.” They have very real effects on how voters imagine their political opponents and the press, cancerous effects. If evangelicals let two good SCOTUS appointments justify voting for him in 2020 and dismissing criticisms of him until then, our nation and our witness will suffer.
Another thing to consider is that there is no telling how the SCOTUS would rule on abortion even with a new, very conservative justice. Historically, justices appointed by Republican presidents have often voted against social conservative issues like abortion and marriage. One never knows.
I have a more fundamental worry about this appointment, however.
The current conservative, right-wing, and republican leadership has no serious interest in educating and persuading the electorate. They have adopted a fairly postmodern, pragmatist view that rhetoric is always simply power and therefore it is justified to lie, deceive, exaggerate, and manipulate voters so long as the end is good. This is deeply unChristian and manifestly not conservative. The apotheosis of this ideology is the Trump presidency and its ardent defenders in office and the media. Their mantra seems to be, “Truth is relative and meaningless and we all know it, and anyway the other side did it first.” And so their primary political strategy — as seen in things like DACA, ACA, Family Separation, and other issues — is to ignore the will of the people and instead force their policies into action. Attempts to persuade the populace to support their policies are half-hearted at best, more aimed at demonizing their critics than making a positive argument.
So, what might happen if we have five justices willing to overturn Roe v. Wade or take a similar major stand on a social conservative case? If there is no serious effort to create widespread support for such policies, I fear that it will only create a large and highly energized opposition. And the result of that could very well be major gains for the pro-choice platform.
Allow me to pause and stress that I am not saying we shouldn’t seek to overturn Roe v. Wade just because a lot of people won’t like it. But I do believe that any attempt at reversing the progressive narrative in America that is primarily legal rather than cultural and religious will not last and may make matters worse.
Consider for example that some people are already calling for the Democrats to “pack the court” once they regain power. Historically, we have not always had nine justices on the SCOTUS. It would be hard to change that number, but if you imagine a highly energized liberal base, it is not far fetched at all. The truth is, in a democracy, almost nothing is set in stone. Even constitutions can be amended. Long term, meaningful political change requires the consent of the governed, the perpetual consent of the governed. I understand that many of us would love to outlaw abortions because they are unjust, but if that law does not involve the consent of the majority, it won’t actually do what we want it to do.
If the pro-life movement and its judicial gains are intimately tied to a form of evangelism that is wholly owned by right-wing political interests, that excuses this administration’s abuses of power and its lies and dehumanization, I believe there is a very good chance that the pro-life movement will be deeply tainted for decades, perhaps permanently.
Watching the alienation that many young and minority evangelicals already feel towards the GOP after this election, and knowing that America’s demographics are moving toward minorities and the young, it is highly plausible to me that aggressive pro-life legislation and judicial rulings that are not accompanied by good-faith persuasion and education will lead to even more liberal abortion laws. As I have observed the progressive narrative in America over the last decade, I have seen no signs that it is losing momentum or popularity.
Our politics should always have a longterm vision, one guided first by a robust ideal of the good, just, and beautiful state. If we allow our culture’s obsession with “winning” and the present to guide our passions, we will end up with short-term gains that quickly flip into longterm losses.
As my friend Paul DeHart reminded me, conservatives must shore up their cultural ruins. We need art, media, and voices that present a beautiful, true, and good vision — not only of politics, but of life, of the human condition, of the dangers of modernity, of the dignity and sacredness of personhood, of the problems with consumerism and expressive individualism, of the importance of families and communities, of fulfilling work, of ensuring justice for our neighbor.
The current conservative media landscape is lucrative and loud and quite effective at mobilizing clicks and votes, but with few exceptions, it is rotten. There is no desire to pursue the good of the audience, either in their beliefs or habits. The virtues have been abandoned. The culture war and the profits it creates set the news cycle.
Perhaps what frustrates me most about this is that there is no shortage of large conservative donors. But rather than spend on the hard but fundamentally necessary work of presenting a winsome and truthful vision for life and the polis, funds are spent on pragmatic and virtueless candidates and media propaganda.
Conservatives with influence must ask themselves at this moment whether their political actions are driven by a vision of the Good and whether they even believe in such a thing as a transcendent, timeless, essential Good. If they do, they must begin funding projects that cultivate the Good. If they do not, it would be better for all involved if they would simply admit to not being conservatives.
My prayer is that whoever the new SCOTUS appointee is, that he or she will honor God by pursuing justice and uprightness. My prayer for evangelicals is that we will not lose our vision of the Good. My prayer for our nation is God’s grace.
