One reason the 2008 election is vitally important can be summed up in two words: Global warming. Another reason can also be summed up in two words: Supreme Court. I hope to write about global warming as well this weekend, but this diary is about Supreme Court.
Both, however, have the same underlying theme: while winning the 2008 is vitally important, it is necessary, but not sufficient. Indeed, neither global warming nor the Supreme Court should be the real focus of our attention, as they are but the most prominent outer manifestations of larger systemic struggles.
What is really needed is a much more sweeping and fundamental reshaping of our collective thinking--and that can only come about through a reshaping of our public institutions.
A couple of weeks ago, law professor Jack Balkin wrote a very significant post on his Balkinization blog, The Rise of the Conservative Legal Movement-- An Exercise in Living Constitutionalism, which revolves around a couple of very significant points: (1) despite the rhetoric of "original intent" as revolt against the liberal approach of the "living constitution," what the conservatives were doing was creating their own version of the living constitution. (2) What's involved in doing this is very much an example of a Gramcian "culture war" or "war of position," (though Balkin doesn't call it that) which I have discussed on various previous occassions. This involves graning control of cultural institutions-either by takeover of existing instutions or creation of new ones-which in turn results in systematic and interlocking redefinitions of funamental assumptions. It means, quite simply, a struggle to redefine what is thinkable.
Teles's book is important in many respects; indeed, it is likely to become the standard history of the rise of legal conservatism. For me what is interesting is the light it sheds on how living constitutionalism actually works, in this case, living constitutionalism from the right.
That may sound strange given the familiar associations between conservatism and originalism, but in fact conservative legal thought is a major contributor to the living constitutionalism of the present generation. Originalism and a call for a return to origins was one of the tropes that conservatives, like many other social and political movements before them, used to persuade people to reform constitutional law.
Next, Balkin says something that's a little complex-perhaps more complex than he realizes:
What conservatives were doing, in effect, was to try to persuade people-- and courts-- to keep the interpretation of the Constitution in sync with changing values-- in this case, conservative values. These values came into dominance as a result of Republican electoral successes, but also, as Teles details, through creating a conservative counter-establishment outside of electoral politics and in civil society. Obviously, many conservative arguments (made sincerely, I do not doubt) were for a return to the older, "correct" readings of the Constitution, but the actual effect of the practice was an exercise in living Constitutionalism.
What Balkin doesn't say-and may not even realize-is that the "changing..conservative values" he is talking about were not the values of society at large. Indeed, there has been very little overall change in values over the past 30 years, beyond a general liberalization of views around race, gender and sexual orientation. What has changed, dramatically, is the elite-dominated political culture, and a good part of that change consists of highly ideological institution-building.
Balkin continues, highlighting the fact that what is involved is considerably more wide-ranging than simply packing the federal judiciary:
You can read Teles' book as a partial critique of Sandy Levinson's and my theory of partisan entrenchment, which argues that constitutional change comes from successive appointments in the federal judiciary, reflecting the vector sum of political forces at the time of appointment. Teles point, which I think is correct, is that it's not enough to appoint new judges and Justices. You have to have a sufficient stock of potential judges and Justices who agree with the aims of your movement that you can appoint. Equally importantly, you have to do work on the "supply side" to provide a litigation support structure that can bring cases before the courts you staff. And you have to do considerable groundwork to contest and change the legal culture so that conservative ideas previously considered "off the wall" get a fair hearing and can be thought of as "on the wall." That's particularly important for a professional culture like that of the law, because professionals generally don't like to be thought of as irresponsible, eccentric or out of the mainstream.
What Balkin is talking about here is the manifestation, within the legal profession, of what Antonio Gramsci called cultural hegemony, as Wikipedia explains:
Although the analysis of cultural domination [hegemony] was first advanced in terms of economic classes, it can be applied more broadly. Gramsci's analysis suggested that prevailing cultural norms should not be viewed as "natural" or "inevitable". Rather, cultural norms - including institutions, practices, beliefs - should be investigated for their roots in domination and their implications for liberation.
Gramsci did not contend that hegemony was either monolithic or unified. Instead, hegemony was portrayed as a complex layering of social structures. Each of these structures have their own "mission" and internal logic that allows its members to behave in a way that is different from those in different structures. Yet, as with an army, each of these structures assumes the existence of other structures and by virtue of their differing missions, is able to coalesce and produce a larger structure that has a larger overall mission. This larger mission usually is not exactly the same as the mission for each smaller structure, but it assumes and subsumes them. Hegemony works in the same manner. Each person lives their life in a way that is meaningful in their immediate setting, and, to this person the different parts of society may seem to have little in common with him. Yet taken as a whole, each person's life also contributes to the larger hegemony of the society.
The crucial distinction between this explanation and what we are seeing today is that Gramsci was describing the hegemonic power of a pre-existing bourgoise culture that did not need a conscious overall strategy. What we have witnessed over the past 30-40 years is a very deliberate rightwing war of position in which conservatives have had a tremendous advantage precisely because they were very clear about the ideological pupropses of the various institions and how they fit together, while liberals and moderates were not.
From here, the conclusion of Balkin's post reads like a direct application of Gramsci's theory:
Thus, you needed to create a series of institutions that would help reshape professional culture and civil society, including the creation of conservative think tanks and conservative public interest law firms, the funding of law and economics programs in the legal academy, and the promotion of networking organizations like the Federalist Society. All of these programs had to be funded by patrons to see which ones worked and which ones didn't, and the patrons had to continue funding the successful programs over long periods of time. The liberal legal culture that conservatives objected to didn't arise overnight, and the conservative counter-establishment didn't either.
Balkin's last statement is both true and misleading. Though both processes took place over time, liberal legal culture took much longer to develop, and it was primarily driven by the need to respond to reality-based problems. Conservative legal culture grew much more quickly, much more deliberately, and much more as a result of a pre-determined ideological agenda. Those differences remain in place today, and they continue to debilitate the possibility of an effective liberal response.
So, yes, we need to win the next election to save the Supreme Court from a total takeover by rightwing extremist judges. But we need much, much more than that as well. For one thing, we need to recognize that we are at war. How anyone could miss that fact after the utterly lawless Bush v. Gore decision is utterly beyond me, but somehow this basic fact has yet to sink in.
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