Taken together, the rulings represent confident and muscular conservative jurisprudence, and a direct challenge to a legal consensus carefully built over decades by generations of leftist scholars and judges. Cue rage mixed with despair on the left and exultation on the right. Also cue a lot of screaming.
Amid the hubbub, it was easy to miss another major Supreme Court drama. The winning side of this New York gun control case was argued by renowned appellate attorney Paul D. Clement. Yet instead of offering congratulations for a job well done, Clement’s company, the venerable Kirkland & Ellis, abruptly announced that it would no longer accept Second Amendment cases. Clement and another Kirkland & Ellis associate, Erin Murphy, left to start their own business.
This setback might not be of much importance in itself; Murphy and Clement will no doubt be fine. Nonetheless, it neatly encapsulates the polarizing forces tearing the country apart and endangering the legitimacy of the Supreme Court.
Lawyers used to have a standard response to people who complained about their choice of clients: everyone, no matter how harmful, deserves representation. A Washington law firm might find itself representing Richard M. Nixon and Ted Kennedy at the same time; the American Civil Liberties Union may end up defending the right of Nazis to march through a Jewish neighborhood in Skokie, Illinois.
It is therefore disturbing to see a large firm not only exclude an entire category of cases but also force its lawyers to choose between representing their current clients or keeping their jobs.
It’s not the first time this has happened to Clement, who in 2011 was kicked out of King & Spalding for defending the Marriage Defense Act. But this trend marks a striking departure from the old standards of the profession. And it’s hard not to see that as a symptom of the cancel culture that has overtaken a number of American institutions, including the elite law schools where Kirkland & Ellis recruits.
The company itself might have no objection to conservative causes — it is, after all, Justice Brett M. Kavanaugh’s former employer. But like many American institutions, it is under pressure from a younger generation of workers far more left-wing and far less tolerant of dissent than its predecessors. He is also under pressure from corporate clients who are – partly out of deference to their own young people – increasingly comfortable using their power to advance the left side of contentious social issues.
This is obviously bad for conservative lawyers and for a society that aspires to liberal values. But that’s not great for the left, because it essentially doubles down on a strategy that has already failed: using the left’s control over key institutions to exclude certain ideas or policies.
The Supreme Court itself was one of the earliest and most successful examples of this, with liberal majorities discovering new rights in the Constitution that tied lawmakers’ hands on a number of contentious issues. Among these, of course, was the right to abortion.
It worked almost too well, frustrating conservatives so much that they began to set up parallel institutions as a counterbalance to the left’s growing dominance over mainstream institutions. Academics launched conservative think tanks, media moguls created Fox News and its brethren, and lawyers embarked on a long campaign to support conservative jurists and fellowships that could remake the courts.
Those efforts got a big boost when Republicans developed their own structural advantage — in the Senate, the House, and the Electoral College. That, plus an aggressive procedural game, gave conservatives control of the Supreme Court.
The left has still not adapted to this new reality. Instead, he tries to reclaim the lost dominance by pressing the “banish misconceptions” button again, harder.
After the flurry of rulings, the opinion pages of Twitter and academic journals were filled with outraged claims that the Supreme Court had lost its legitimacy by becoming a partisan and ideological actor. Yet that is precisely what the right thinks of the media and academia, and increasingly of corporate America. It’s hard to pretend the Tories are wrong when you enthusiastically purge them from your ranks.
The more the left tightens its control where it has influence, the more it cedes the institutions it does not control to the other camp. Given that these institutions include the Supreme Court, it would be time now to reflect on the limits of this kind of maneuver.
Now would be a good time for the right to think about that too.
No victory is forever, and a conservative court that aspires to true greatness would think about building the future while rectifying the past. However justified the Conservatives are in reversing the mistakes of their predecessors, they would be even wiser not to repeat them.