The Corner

Law & the Courts

Why Progressives Are Freaked Out about Conservatives Controlling Just One Elite Institution

Judge Amy Coney Barrett on Capitol Hill in Washington, D.C., October 21, 2020. (Anna Moneymaker/Reuters)

The freakout by Democratic politicians and progressive and liberal pundits over the confirmation of Amy Coney Barrett has really been something to behold. As Isaac Schorr noted, the New York Times ran seven simultaneous columns pushing Court-packing. David Harsanyi rounded up some of the alarmist Democratic reactions, such as Chuck Schumer calling Justice Barrett’s confirmation “one of the darkest . . . days in the long history of this Senate” and Ed Markey’s unhinged, up-is-down screed about how “Originalism is just a fancy word for discrimination.” Michael Brendan Dougherty noted the bizarre habit of saying that Justice Barrett is taking “Ginsburg’s seat,” as if Ruth Bader Ginsburg did not herself replace one of the two dissenters in Roe v. Wade. The tantrums on Twitter were even more technicolor. As usual, the online progressives were the most unhinged.

There are a variety of reasons for this sort of reaction, even coming as it does at a time when Democrats are full of optimism for the upcoming election. Some, of course, relates to the particulars of how we got to a Trump presidency and a Republican Senate that would confirm Trump nominees, and to the timing of the various appointments. Some is simply a recognition that the cultural left has long relied on the courts to enact policies that could not attract an electoral majority, and will now have to abandon that project for some period of years. Some is the famous inability of progressives to ever concede the legitimacy of anything that does not go their way.

But there is also one particular aspect of conservative success in filling the federal courts that contributes to the tone of hysteria that creeps into these reactions. The federal appellate courts, and the Supreme Court in particular, are elite institutions — indeed, the most elite institutions in all of American government and the legal profession. They are populated by highly educated professionals. They work with ideas. They are one of the few institutions of government that actually consumes the work of academics and sometimes translates it into policy. Their output is expected to be scholarly in character and taught in law schools. To see such institutions in the hands of conservatives, particularly social and religious conservatives, is intolerable to people whose worldview depends so heavily on sneering at the inferior intellect of anyone who holds to socially conservative views. That sneering is especially apparent any time a conservative is described as intelligent; the gag reflex you see in response is visceral.

Elite or wannabe-elite institutions in our culture these days tend to be dominated by social liberals and progressives, who in turn seek to drive out all dissenters. To be a conservative on a university faculty is to be, at a minimum, badly outnumbered. Often there are more-or-less open efforts to stamp out any remaining vestiges of disagreement. We see the same thing with big newspapers, magazines, and other journalistic institutions; with the arts and entertainment; increasingly in large corporations as well. The tribunes of the legal profession itself — the bar associations, the journals covering the legal industry, the people who hand out awards — are dominated by the same groups, and rarely even engage with the possibility that their values might not be the only good ones. But no amount of desire for social ostracism can change the fact that the Supreme Court and the federal appellate courts sit atop the legal food chain, where the bar’s disapproval must remain comparatively muted, if through clenched teeth. To a certain sort of progressive, this itself serves as a kind of standing rebuke, a nagging reminder that gets in the way of simply scorning the idea that conservatives could be capable of doing such a job.

Worse yet, the Supreme Court in particular is not just an elite institution, it is an elite credential. A law student may have no higher aspiration than to clerk for the Court. Big law firms compete to hire clerks, and law schools traditionally do as well. Supreme Court clerks are, with little irony, spoken of as a sort of elect priesthood. The inability to close off conservatives from the opportunity to join that elect by controlling hiring means that another generation of conservatives will survive to continue the tradition. It also means that law firms cannot simply boycott the clerks of conservative or Republican Justices, not when they are two-thirds of the Court. For the sorts of progressives who refuse to ever socialize with any Republican, this also means having to compete for jobs with only a third of the Justices.

Much of the angst in today’s politics — in any politics, but particularly in the current cultural moment — is about social status and who gets to control it. Losing a monopoly on that control in the courts will be a pebble in the shoe of many progressives for years to come.

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