Justice Anthony Kennedy announced his plans to retire on Wednesday, a bit of a surprising move given the near-certainty that Trump will nominate a conservative judge opposed to Roe and Obergefell. The Republican majority in the Senate and the uncertainty of mid-term results means Trump’s nominee will likely get through without too much trouble. McConnell and the rest of the Republican leadership played their cards well (though not necessarily ethically) with Gorsuch and consolidated their power to push a nominee through even with a straight party line vote. That started with Chuck Schumer’s removal of the filibuster for lower courts and government jobs.
All this to say: the court will have a solid conservative bent by the time this nominee fight finishes.
Conservatives are elated that their Trump bet is paying off. For them, this is the reason they elected him, and this is what they’ve waited for through all the Obama years. Their victory is now certain, it seems.
But those on the liberal side of politics are not quite there. For example, I count eight pieces Slate has published about Kennedy’s announcement, and without fail they all throb with heartbreak and fear. Exemplary of this, Lili Loofbourow writes:
The party ruling our country has demonstrated there is no principle it will respect, no norm it will endure. My rights as a woman are in danger. Civil rights are in danger. And the republic is in danger. I am sad, above all, because the damage being done now no longer feels like it can be stemmed—let alone reversed—with a single election. This will last decades. The downturns my generation has already weathered—the 2008 crisis that hinged on obscure derivatives traded by a privileged few, robbing wealth from millions—were only the beginning. Education is now a luxury. Pensions barely exist. Health care is under threat. Retirement is, to those my age, a cruel joke. We’ve been waiting. For recovery, for relief, for some semblance of an American dream we can access. It is clear, now, that there was nothing to wait for.
Read those last three sentences again:
We’ve been waiting. For recovery, for relief, for some semblance of an American dream we can access. It is clear, now, that there was nothing to wait for.
Those are the words of someone heartbroken that the country they thought was theirs and the future they thought imminent now seems forever away and, perhaps, simply unattainable. The horrifying thing is that many conservatives will read that with joyful glee. The people who love to call liberals “snowflakes” and watch Fox News see this as their ultimate triumph, the destruction of the American-hating Democratic agenda, and the pain of those who fought for it.
But both responses might share the same flaw.
If Yuval Levin is right that both political parties are driven by a nostalgia for a supposed golden age now passed, then this event brings those longings front and center. For conservatives, the election of Trump and his ability to shape the future of the Supreme Court is an eschatological judgement in favor of their vision of America. They fought through the Obama years–Obama, of course, doing everything he could to destroy America, as many conservatives have told me–and now have come out the other side victorious. The triumphalism of Fox News isn’t tempered by the reality that this is just political maneuvering, that the pendulum of America might swing away from them very soon, and that the pendulum of history will certainly swing the other direction eventually.
For conservatives, this is not a temporary moment of success, where a temporary good might be accomplished and a set of particular moral issues might be redressed. There isn’t a long view here that recognizes winning the debates in America today ensures nothing except that, today, in America, you won the debate. 2020 will come, and with it (maybe) a new president. In any event, a backlash is likely at some point.
Even if Trump is the hero of fiscal and social Republicans and sets America back on a path to prosperity and conservatism, that path will eventually take a turn to the left.
The issue is that for Republicans this isn’t about doing as much good as they can in the times they’ve been given. This is Judgement Day, and the universe has judged the liberals and rewarded the conservatives.
And vice versa too. Democrats had the political momentum for a while. Even now they might have it, long-term. I still wonder if Trump’s victory will be seen in retrospect as a random fluke. But this political momentum has, at least for now, come to a screeching halt. And now they’re left realizing, as Loofbourow says, “We’ve been waiting. For recovery, for relief, for some semblance of an American dream we can access. It is clear, now, that there was nothing to wait for.”
Democrats kept making the argument that the long moral arc of history was on their side. One day Judgement Day would come and the conservatives would be tossed into outer darkness and the liberals would be rewarded. Left-wing activists fought for the right side of history, and history would reward them.
Of course, these are deeply eschatological claims. The idea that history has a long moral arc is an inextricably theological idea. But here, for conservatives no less than for liberals, the power orchestrating the flow of history is not a god but the rightness of their ideas. If only the right political maneuvers were executed, and the right members of Congress and the White House staffed, and, of course, if only the right justices were on the Supreme Court, then justice would roll down like waters and righteousness like a mighty stream. Or, if you’re a conservative, it might not be justice rolling down; it might be self-ownership or responsibility or something like that.
But the reality is that when we surrender our lives to the orchestrations of history, history will break our hearts. For many Democrats, they feel that now. But conservatives have felt it before and they will feel it again. Anthony Kennedy’s retirement is not salvation and no matter how many Scalia-clones Trump appoints the Supreme Court will never usher in justice and peace. The Supreme Court is not strong enough to heal reality. It may be strong enough to fight discrimination against gender and sexual minorities or uphold campaign finance laws or overturn Roe but it is also strong enough to break our hearts. The thing it isn’t strong enough to do is save the world.
Which makes this a time for neither triumphalism nor heartbreak. It’s a time to listen to those we disagree with and hear their heartbreak or happiness and recognize it as our own, if not now, then someday. It is also a time to let go of the Supreme Court and political idolatry.
Should we push for policies and judges we believe in? Sure. But America is not the Kingdom of God and it never will be. America is no model of virtue, tolerance, and equality. It never will be.
Someday America won’t exist. Perhaps something better will. Perhaps not. For some writers and novelists the future they envision is apocalyptic. For Cormac McCarthy, it’s post-apocalyptic. As his father and son roam the burned out remains of a once-flourishing America in The Road, politics no longer seems important. Everything Americans fought for, in this future, was destroyed apparently overnight. All that’s left is to survive and to take care of those close to us. And yet something deeper remains, something throbbing beneath the surface of the charred landscapes and hunger and pain. It’s a long moral arc of history, sure. But it’s also something more personal.
The boy in the story, near the beginning, thinks he sees another boy hiding off the side of the road. He can’t find him and the man assures him it was a hallucination. And yet as the man lies dying and the boy weeps over him, he can’t help but ask:
Do you remember that little boy, Papa?
Yes. I remember him.
Do you think that he’s all right that little boy?
Oh yes. I think he’s all right.
Do you think he was lost?
No. I don’t think he was lost.
I’m scared that he was lost.
I think he’s all right.
But who will find him if he’s lost? Who will find the little boy?
Goodness will find the little boy. It always has. It will again.
Maybe Trump will continue to degrade the human and civil rights of immigrants and minorities. Or maybe 2020 will sweep Democrats into office and abortion will be enshrined as an inviolable hallmark of our society. Either way someone will end up asking who will find the lost and abandoned of society. We need a better answer than, “the Supreme Court.” We need to know that Goodness will find them, just like Love will. It has before. One day, it will for the last time. Then, it will never need to again.