Thoughts On Justice Kennedy’s Announcement

Carolyn Kaster/AP

Elections have consequences. Often they are profound consequences stretching years or decades into the future from their inception point. Trumpism is civic poison. There is a temptation to think that this is another reverse coming after Trump’s election, the U.S. withdrawal from the Paris Climate Accord, the reversal of DACA protections and more. I don’t see it that way. These jolts are really only absorbing, fully recognizing the consequences of what happened in November 2016. Once we ingested it into the body politic all sorts of outcomes became either inevitable or possible. This is just one more of them, though perhaps the most consequential yet.

Jeffrey Toobin says Roe v Wade will be overturned and abortion in 20+ states within 18 months. This is far from the only change we are likely to see in short order. The most visible, high-profile Court issues tend to be those centering on questions like abortion rights, LGBT equality, religious liberty. Far less visible, though no less consequential, are the issues I expect a new Court to focus on most: using the scaffolding of the law to block legislatures from addressing key economic questions facing our society, much as the Court did in the late 19th and early decades of the 20th century. They are all important; they’re all down by six runs in the 9th inning.

How do we react? I wrote yesterday that we can’t expect the courts to save us? That was clear with yesterday’s decisions. It’s even more overwhelmingly clear today. Litigation remains critical. But the fight for voting rights, for instance, will be won at the ballot box. Change will come through robust political coalitions — at the local and state level, building to the federal level. Everything else must follow the same path. We are on our own, left to our own devices. The history, whatever mistakes, misfortunes and interventions, is simply the terrain we now grapple with.

Coming off the brutal 2004 election, George Bush was reelected with his Republican majorities after an unexpected midterm election pick-up in 2002. There were numerous articles and even books explaining the Republicans’ “permanent majority,” a mix of wedge issues, money and geography which locked in a Republican majority something like forever. Two years later the entire Republican congressional party was shattered. Things change quickly – often dramatically and at the worst moment. I continue to believe that the Republican right is involved in an essentially defensive action, trying to lock in policy gains and anti-democratic obstacles to stave off an electorate which is growing and largely hostile to their views.

That’s an analysis, a prediction. But predictions and analyses can be wrong. We don’t know the future. As an historian, I know we don’t even really know the past. I wrote this the day after President Trump’s election: “At such a moment I come back to a thought I’ve told family members at times of stress or grief. Optimism isn’t principally an analysis of present reality. It’s an ethic. It is not based on denial or rosy thinking. It is a moral posture toward the world we find ourselves in. If everything seems great, there’s no need for optimism. The river of good news just carries you along.”

Our commitment to our values and to our country, which we express through political action, is an ethical commitment, not a read of the odds. The greater the crisis, the greater the national affliction, the more your country needs you. Our journalism, your activism, your commitment are simply more important today than they were yesterday. We can lie down. We can stand up. We can walk forward. For my part, I can’t think the future is on the side of the American right when the man who now embodies is it is so consistently unpopular. But I will walk forward regardless.