“While the Democratic Party is fundamentally a group coalition, the Republican Party can be most accurately characterized as the vehicle of an ideological movement,” they argue, with a broad range of evidence in support — from individual voters’ opinions and how the two parties organize to public-policy issue debates, political campaigns and finally how the parties govern. At every level of analysis the same distinction recurs, and the differences at each level reinforce one another.
At the level of individual opinion, more people identify as conservatives than liberals, and conservative ideology (“free markets,” “limited government,” etc.) is more popular. But on the other side of the ledger, support for specific liberal policies like Medicare, Social Security and so on is even more lopsided — a phenomenon first documented in detail in Lloyd Free and Hadley Cantril’s 1967 book, “The Political Beliefs of Americans.”
But despite not articulating it, Democrats do have an implicit shared ideology that would greatly strengthen them if they openly embraced: That being the principle that government exists to be a positive force for good, to “promote the general Welfare, and secure the Blessings of Liberty,” in the words of the United States Constitution.
This tacit ideology lies behind the widespread support for more government spending on a wide range of issues — from Social Security and Medicare to environmental protection, infrastructure, public education, etc. And it has been placed in immediate peril by the threatened conservative takeover of the Supreme Court. In the last section of their book, Free and Cantril specifically called for making this tacit ideology explicit:
There is little doubt that the time has come for a restatement of American ideology to bring it in line with what the great majority of people want and approve. Such a statement, with the right symbols incorporated, would focus people’s wants, hopes, and beliefs, and provide a guide and platform to enable the American people to implement their political desires in a more intelligent, direct, and consistent manner.
That restatement has never come about, even as on-the-ground support for liberal policies remains strong. The failure to make this tacit ideology explicit and central has contributed enormously to Democrats' political weakness over the past 50 years. Now it's gone so far that conservatives appear to have a lock on the Supreme Court, even though the Republican presidential nominee has only won the national popular vote once since 1988, and the 51 Republicans in the Senate represent a minority of Americans in the Senate. A Supreme Court radically at odds with public opinion on Roe vs. Wade (according to recent polling by Kaiser, Pew and Ipsos) is just the tip of a very dangerous anti-democratic iceberg.
A recent Daily Beast story highlighted the central role played by Leonard Leo of the Federalist Society, which was founded in 1982 as an ideological conservative organization unmatched by anything on the left:
“Leonard Leo was a visionary,” said Tom Carter, who served as Leo’s media relations director when he was chairman of the U.S. Commission on International Religious Freedom (USCIRF), in an exclusive interview with The Daily Beast. “He figured out twenty years ago that conservatives had lost the culture war. Abortion, gay rights, contraception — conservatives didn’t have a chance if public opinion prevailed. So they needed to stack the courts.”Amazingly, said Carter, Leo has succeeded in this mission with few people taking notice.
“The Christian right has been written about a lot, but hardly anyone talks about the Catholic right,” Carter said. “Four Supreme Court justices — they’re more successful than anybody: the NRA, the Israel lobby, Big Pharma, no one else has had that kind of impact.”
Actually, there is an excellent book about the Catholic right, “The Theocons” by Damon Linker, and Leo cannot take sole credit for what that movement has accomplished. But he has played a vital coordinating role within the multilevel framework of the GOP that Grossman and Hopkins describe, which has no counterpart on the less strategically organized Democratic side. Still, the main thrust of Carter's argument is correct: Conservatives have lost the culture war, and have no chance to win if public opinion prevails on major issues of the day. So stacking the courts was their only conceivable path to victory.
Going forward, their only option will be to increasingly fragment America in order to protect their minority enclaves of power, as author Jedediah Purdy sketched out in a Twitter thread on what he called “The Jurisprudence of Red-State Separatism”:
2/ By this I mean, first, empowering some mix of elites and majorities in red states to run things their way against national legislation that's more left-egalitarian:3/ (A) Making the Medicaid expansion optional (2012), essentially so the South could decline it for a mix of racial, libertarian, and low-wage-growth-model reasons; (B) Invalidating pre-clearance for voting-law changes under the Voting Rights Act (2013)...
4/ ... which lets (again, mainly Southern) states start engineering their voting laws to discourage Democratic-tending voters.
5/ Although it hasn't really happened yet, the next frontier, which Masterpiece Cakeshop invited this year, is a further model: jurisprudential opt-outs for "red America" attitudes--expressive and associational freedoms to opt out of identity-egalitarian antidiscrim policies...
6/... so that even within liberal states, or under a national antidiscrim scheme, red America still gets its opt-out….
10/ Meanwhile, the Court continues to make campaign finance impossible, cut back on public unions, gut regulation from time to time on First Amendment grounds.
11/ The result would be a more unequal country, and also a more culturally divided one, regionally and at smaller scales--call it a jurisprudence of cultural balkanization, married to a jurisprudence of right-wing federalism.
This is, in short, a neo-Confederate vision of America, balkanized beyond all belief and perpetually ruled by an insular minority, whatever temporary victories a majority might win in any given election cycle. That is what the GOP’s ideological politics are leading us toward. It's not quite “The Handmaid’s Tale,” but it's “Handmaid’s Tale”-adjacent.
If we want to avoid that future — not just to win the next election, but to reclaim the promise of American democracy for future generations — the time is long overdue for Democrats to articulate their own ideology, regardless of the very real difficulties in doing so, which Grossmann and Hopkins have discussed in detail, both in their book and in subsequent commentary.
It cannot be an ideology that ignores the coalitional nature of the existing Democratic Party. That’s clearly a non-starter. But it can rearticulate that coalition much more forcefully as a matter of shared values reflected in specific policies — as Bernie Sanders did in 2016, and as Alexandria Ocasio-Cortez has done this year — rather than transactionally-mediated interests, which is the de facto model for how the party functions today under the leadership of Nancy Pelosi and Chuck Schumer.
The transactional side of politics will never go away, of course. It’s part of how humans do politics at every level of their lives. But its relative power can be significantly reduced, especially its tendency to serve as a gatekeeper that excludes new voices and new ideas that should be the lifeblood of the Democratic Party in particular and of American democracy more broadly.
Let’s look at the process first. Bernie Sanders broke the mold in 2016, explicitly flaunting the label of "socialist," even if he was really more of an old-fashioned New Deal Democrat, updated with 21st-century concerns. Ocasio-Cortez doesn’t flaunt the label the same way, nor does she shy away from it. She knows that the power of what she stands for lies in the specifics, in values made concrete — as it always has, since Free and Cantril first articulated the matter, more than 50 years ago. As I wrote here previously, when MSNBC's Stephanie Ruhle questioned Ocasio-Cortez on the "label" of socialism, the candidate said it was "a perfectly legitimate concern," but then pivoted:
“I always go back to how we won this race. And we didn't win this race with labels," she said. "We ran this race with our goals and our issues in mind. ... At the end of the day most people want to make sure that everyone has health care, most people want to make sure that every child has access to equitable education, to college. And that's really what we’re talking about.”
Shifting the focus as Ocasio-Cortez does there is vitally important at this moment, but we must also remember that this moment is part of a larger historical process. As people get increasingly comfortable with seeing things this way, then broader, more coherent ideological themes may start to make more sense, especially as it becomes clear that “socialism” in some form is not some elite, intellectual abstraction but has ancient roots found in every culture and every religion, and a profoundly multicultural heritage.
READ MORE: When evangelicals were pro-choice and the NRA was pro-gun control: A history of hypocrisy
This brings us to the second point: that whatever ideology emerges will be pluralistic, forward-looking and empirically grounded. Pluralistic means more than just reflecting multiple group interests. Philosopher William James described it as a fundamental approach to all life, which preserves our sense of agency and possibility, as opposed to monistic philosophies of all stripes. Pluralism respects and even celebrates the fact that no one point of view should be expected to encompass the whole truth on any subject.
In the 2016 campaign, there seemed to be a sharp divide within the party, epitomized by the division between Sanders and Hillary Clinton. But the popularity of the ideas that Sanders advanced — and that his supporters have pushed forward since — has already altered the terrain inside the party, with multiple potential 2020 contenders embracing Medicare for All, the Fight for $15, student debt relief and a universal job guarantee. Most recently, Ocasio-Cortez’s call to abolish ICE has been taken up by Sens. Kirsten Gillibrand and Elizabeth Warren, with Kamala Harris coming diplomatically close to doing the same.
Even the party establishment itself seems increasingly aware that a profound and necessary change is under way. Consider a recent article in Democracy Journal, “The New Old Democrats,” by Jake Sullivan, an Obama administration alum and senior policy adviser on Clinton’s 2016 presidential campaign. The subhead said it all: “It’s not the 1990s anymore. People want the government to help solve big problems. Here’s how the Democrats must respond.” Or, as political scientist Corey Robin put it in a tweet this week:
Fascinating from senior Clinton adviser. Concedes Dems, incl. Obama, have been trapped in Reagan time, Sanders was right to break that, Trump and Sanders show we're heading for realignment. The policy/politics that follows is meh but beside the point. https://t.co/ZlXfL1OJZL
— corey robin (@CoreyRobin) July 13, 2018
Crucially, Sullivan says, “Democrats should not blush too much, or pay too much heed, when political commentators arch their eyebrows about the party moving left. The center of gravity itself is moving, and this is a good thing.”
Beyond the Democratic Party itself, he points out that Trump’s own economically progressive ideas helped gain him the nomination: “Raising taxes on the rich. Investing in infrastructure on a massive scale. Protecting Social Security and Medicare from any cuts. His campaign even floated breaking up the biggest banks. Of course, once in office, Trump has not governed that way — quite the opposite.” He adds, “A January NBC News-Wall Street Journal poll found that 58 percent of registered voters believe the government should do more for the American people, compared with 38 percent who said the government does too much. That is a record high since the question was first asked in 1995.”
That newfound popularity is a good thing, of course. But it shouldn’t be taken for granted. It needs to be strengthened, built on and elaborated, with a realistic view of the power struggles going on in America today. The issue of the Supreme Court vividly illustrates what’s at stake, as the Republican game plan would cripple the ability of that 58 percent majority to get anything at all passed into law. Other recent polls underscore how out-of-step Republicans are with the American people on some key issues. Pew found 55-percent support for the idea that the Supreme Court should interpret the Constitution for "current times," and Ipsos found “overwhelming majorities” in both parties opposed to the 2010 Citizens United decision striking down campaign finance laws, even surpassing the 63 percent opposed to overturning Roe v. Wade.
There’s a fundamental bait-and-switch quality to the Republican approach that has grown increasingly blatant over time, as MSNBC’s Katy Tur pointed out in a segment this past week highlighting those poll results:
Back when Merrick Garland was nominated by President Obama, Mitch McConnell made the argument that the American people should have a say in this, the American people should decide who they want as the next president, and they should decide, through that person, who gets on the Supreme Court, that was all part of it, the American people have a choice. It seems now the argument is, "No, the American people shouldn't have a choice, it's all about the Constitution." It feels like conservatives are trying to have their cake and eat it too on this issue.
But conservatives are doubly duplicitous. At the same time that they have promised their base voters “protections” against democracy, the official conservative narrative has long been that their judges alone can interpret the law properly: There is only one right way, and they’ve got it.
University of California, Irvine, law professor Richard Hasen, author of "The Justice of Contradictions: Antonin Scalia and the Politics of Disruption," a nuanced but deeply critical account, captured what’s going on perfectly, this week.
J Kavanaugh, like J Gorsuch, will be more Scalia than Scalia. It is a legacy not only of "originalism" and "textualism" which usually leads to conservative results. It treats other means of interpretation as illegitimate. More on Scalia's legacy here: https://t.co/gCEY8TlBMF
— Rick Hasen (@rickhasen) July 10, 2018
But you don’t have to read Hasen’s book to get a good read on how questionable Scalia’s approach was. A much shorter text will do the trick: a 2012 review of "Reading Law," a book Scalia co-authored with appeals court judge Richard Posner — at the time, the most respected conservative legal scholar not on the Supreme Court. Scalia’s Heller decision, found an individual right to own guns in the Second Amendment that everyone else had managed to miss for over 200 years, which is where this all began.
"Reading Law" is Scalia’s response to the widespread criticism of his Heller opinion, and as Posner wrote in “The Incoherence of Antonin Scalia,” it is "unconvincing." Scalia claims that textual "originalism" provides the only “objective” judicial approach to interpreting the law. But as Posner notes, the argument poses its alternative as “non-originalism,” which is “just a bogeyman,” not something that actually exists. Furthermore, Scalia actually abandons textual originalism by embracing a wide array of other judicial guiding principles, as Posner explained:
A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.
In short, what is presented as only way to interpret the law is simply a con used to sell the public on trusting Scalia’s opinions more than their own.
Of course there are other ways to interpret the law—as those fifty-seven “canons of construction” suggest. What makes a true judicial philosophy is a set of principles that gives coherence to the range of choices a judge always has in a given situation. That's not an easy thing to do in the space of a bumper-sticker slogan.
Not all conservatives lean so heavily on originalism, but almost all find some way to pretend they’re just doing their jobs the only way that’s proper. In his confirmation hearing, Chief Justice John Roberts claimed to be “calling balls and strikes,”— in effect, that he had no guiding legal or judicial philosophy. Legal scholar Ronald Dworkin wrote a scathing article in the New York Review of Books, “Judge Roberts on Trial,” not only criticizing Roberts’ hide-the-ball philosophy, but also highlighting what an honest judicial philosophy can look like:
Justice Stephen Breyer, in his recent book setting out his own constitutional philosophy, offers a more attractive example. He argues that the liberty protected by an appropriate conception of democracy embraces not only a citizen's freedom from undue government interference but a more active freedom to participate in self-government as an equal; and he undertakes to show that an understanding of the Constitution as aiming to promote that form of liberty can guide constitutional adjudication in several matters, including free speech, federalism, and the constitutionality of affirmative action.
Of course that's not the only constitutional philosophy a liberal or progressive can have. The Constitution is a balancing act between multiple sorts of good, in an effort to defend against multiple sorts of evil. No single vision of the good can exhaustively account for the whole. We need more than one vision to guide us, because even the best possible vision will leave something out, or undervalue it. We need a plurality of constitutional visions to have any lasting confidence in the robustness of our judiciary to help protect our republic’s future.
But we can’t even begin to discuss such matters if we allow the simplistic BS of conservative judicial narratives to dominate the public square. If Democrats are a coalition-based party, then they need coalition-based ideology to unify them in all they do — including the way they approach the courts. People with specialized backgrounds in protecting and advancing the interests of different coalition members can make invaluable contributions — as did Thurgood Marshall, the legendary founder and lead counsel of the NAACP Legal and Educational Fund, in the struggle to overturn Plessy vs. Ferguson, or Ruth Bader Ginsburg, who argued six gender discrimination cases before the Supreme Court.
It goes without saying that lawyers from such traditions need more than just the skills of advocacy to make good judges, good appeals court justices, good members of the Supreme Court. But the experience and perspectives they gain in struggle and solidarity on the behalf of their clients are vital to preserving the living promise of America for all, rather having it twisted into a crabbed rationale for preserving only the “liberty” of those who already hold most of the power.
Only a pluralistic vision of America can be inclusive enough to offer every American a chance to live his or her dreams. Only a pluralistic vision of American law can safeguard that vision of America. And only a pluralistic political philosophy of positive government action can enable the Democratic Party to achieve those ends -- starting with today's battle for the future of the Supreme Court today.
Then again, when he fully absorbs the outcry, Trump will likely just utter two dismissive words: “Fake news.”