Yale law prof: 'We won the culture wars, so now we need to start taking *stronger* legal action'
If I hadn't stumbled on this guy's blog I wouldn't have believed any so-called "liberal" would dare to be so open about his hatred of conservatives, and his side's carefully-plotted strategy to impose his and their brand of fascism on the nation.
Oh wait, the emperor has been just as open in his goals so guess I'm not too surprised. Still, it's a chilling read:
Friday, May 06, 2016OMG, they were in, like, total fear of [gasp!]...a backlash? Not a...backlash! How awful!
Abandoning "Defensive Crouch Liberal Constitutionalism"
Several generations of law students and their teachers grew up with federal courts dominated by conservatives.... The result: Defensive-crouch constitutionalism, with every liberal position asserted nervously, its proponents looking over their shoulders for retaliation by conservatives (in its elevated forms, fear of a backlash against aggressively liberal positions).
Wow, talk about deliberate misdirection! Of course conservatives rather than so-called "liberals" were the ones using the term "culture wars" to describe the huge efforts libs were making to fundamentally transform American culture via decisions made by unelected liberal judges. Back then they were trying to hide that fact. Admitting it would have made their goal far harder to achieve.
It’s time to stop. Right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents, and ... the same appears to be true of the district courts. And those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions. ...
And we shouldn’t focus on the Court’s docket this year, which was shaped by conservative justices thinking that they could count to five on a bunch of cases. The docket will look quite different if they can’t see that path to five votes when they decide which cases to review.
What would abandoning defensive-crouch liberalism mean?
A jurisprudence of “wrong the day it was decided.” Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided. My own list is Bakke (for rejecting all the rationales for affirmative action that really matter), Buckley v. Valeo (for ruling out the possibility that legislatures could develop reasonable campaign finance rules promoting small-r republicanism), Casey (for the “undue burden” test), and Shelby County.... What matters is that overruling key cases also means that a rather large body of doctrine will have to be built from the ground up. Thinking about what that doctrine should look like is important – more important than trying to maneuver to liberal goals through the narrow paths the bad precedents seem to leave open.
The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry for culture wars, which describes conservative activists, not liberals, using the term.)
And [conservatives] had opportunities to reach a cease-fire, but rejected them in favor of a scorched-earth policy. The earth that was scorched, though, was their own: No conservatives demonstrated any interest in trading off recognition of LGBT rights for “religious liberty” protections. Only now that they’ve lost the battle over LGBT rights, have they made those protections central – seeing them, I suppose, as a new front in the culture wars. But, again, they’ve already lost the war.
For liberals the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after [sic]. And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.
I note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won.
Aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling. Take Wal-Mart: Confine it to its unusual facts (a huge nation-wide class, a questionable theory of liability), and don’t treat it as having any generative power in other cases. Or Washington v. Davis, which said that disparate racial impact wasn’t enough to trigger strict scrutiny, but that sometimes such an impact could support an inference of impermissible motive: Play the “sometimes” for all its worth. Defensive-crouch liberalism was afraid to be aggressive about the precedents because of a fear of reversal by higher courts. That fear can now be put aside. (Judge Reinhardt’s essay on habeas corpus, in the Michigan Law Review, is an exemplary discussion of how liberals can exploit ambiguities and loopholes.)
Remember that doctrine is a way to empower our allies and weaken theirs. Conservative decisions on class-action arbitration should be understood as part of a long-term project of defunding the left. Much of the current Court’s voting rights jurisprudence strengthens Republican efforts selectively to shrink the electorate. Similarly with campaign finance jurisprudence. I don’t mean that these doctrines are consciously designed by the justices to have those effects, but outsiders – academics and activists – should understand that that’s what they do.
Finally (trigger/crudeness alert), fuck Anthony Kennedy. I don’t mean that liberals should treat him with disrespect.
Oh, of course. That was, like, totally obvious from your assertion "Fuck him."
But defensive-crouch liberalism meant not only trying to figure out arguments that would get Kennedy’s apparently crucial vote (not so crucial any more), but also trying to milk his opinions – and more generally, obviously conservative opinions – for doctrines that might be awkwardly pressed into the service of liberal goals. (Think here of how liberal constitutional scholars treated Kennedy’s [truly silly] concurring opinion in Parents Involved [“You can deal with the consequences of segregated housing patterns by locating new school construction carefully” – in districts that are closing rather than building schools], or his “views” about affirmative action, or recasting the Court’s federalism cases as actually good for liberals.) There’s a lot of liberal constitutional scholarship taking Anthony Kennedy’s “thought” and other conservative opinions as a guide to potentially liberal outcomes if only the cases are massaged properly. Stop it. (See agenda items 1 and 3 for how to treat those opinions.)This man epitomizes the enemy of all that's good. If you believe in any conservative values whatsoever, he is determined to use the law to either make you abandon your principles or else make your life miserable. "We won the culture wars," he crows, "and all that remains for you losers is to deal with it."
We'll see about that, you sonofabitch.