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Tuesday, April 20, 2021

The reason the future of the Supreme Court is in

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The autopsy of the 2016 election has become a sort of cautionary tale for American democracy — a wishful imagining that somehow, someday, the republic itself will avoid such violent and bloody reversals of fortune as the last couple of major presidential elections.

That dream has now given way to nightmares: Donald Trump’s bombastic National Security Adviser Michael Flynn, for instance, boasts that he alone could “take out” the families of senior political enemies; white supremacists march with an ultra-violent Southern California man; militias prepare to fend off a “Muslim invasion”; the president-elect himself attacks the judiciary as “very political” and “dangerous.”

But — just as Trump’s provocations may offer the nation a reason to believe that it could be worse — his impulsiveness and noise may actually mark the beginning of a dramatic democratic revival.

That’s because Trump’s vitriol, wrapped up in a willfully ignorant faith in his heroic “populism,” strikes at the ironies of American liberalism. Whether or not you agree with the current president’s brand of conservative populism, Trump’s gut attack on everything he holds dear reveals a cleavage between a great many of his supporters and the consensus produced by liberals — most notably, the many millions of Americans who consider themselves mainstream on gender, sexuality, race and ethnicity.

Trump’s base is not an angry mob in the usual sense. Like John McCain’s 2008 campaign and the Obama 2012-2008 coalition, it is a combination of love for Trump (“There’s a difference between someone who can be a role model for your kids and someone who calls you names,” a 63-year-old New Hampshire woman who voted for Trump said to her local paper, of Trump’s sexism) and relief at the idea that the Trump world is not really the Trump world.

Trump didn’t deliberately alienate voters from across the political spectrum and from all ideological and class lines, but he gave voters the perspective of someone they could connect with. And he gave them a powerful reason to think that the liberal order of crony capitalism, shallow social welfare and modern-day slavery is a false idol that must be smashed.

This point isn’t made by sneering conservatives who — with characteristic callousness — call out those “leftist wusses” for their failure to acknowledge how appalling Trump’s behavior and policies are. Instead, a sober and empathetic analysis of Trump’s potential actions all the way to nominating his Supreme Court justice puts him simply in the category of men and women who have articulated a large, social-democratic vision of the American future but don’t have the constitutional means to realize it.

For a founder of the progressive movement, leading progressives such as Martin Luther King, Jr., and Newt Gingrich, have been right on this point for half a century. The idea, of course, was never hard to find. These values ought to be built into the constitutional order, into the political economy and into everything else to which the liberal nation gives its allegiance. But at the same time, it had never occurred to anyone before Trump to regard the Supreme Court as the vehicle for realizing the full scope of those values, in all parts of our governing and governing institutions.

Just as my colleague Conor Friedersdorf makes a fine point, Trump’s anti-system maneuvering has given progressives a good reason to think he might actually nominate an honest to God radical, representative of the vision he campaigned to confront and destroy. Two of the past three Supreme Court nominees have been conservatives who put the rule of law at the core of their agenda.

Like most young people, even young progressive judges in the post-Gingrich-Reagan era have experienced this Constitution-as-a-wassup bromide as a joke. It feels wrong to hear that the Bill of Rights protects a minority of the population when plenty of Americans are treated as aliens just by virtue of their racial, ethnic or religious identity. How many people watched the Supreme Court’s 2003 “end run” around the Voting Rights Act and felt righteous about lashing out at a federal law designed to win the rights of minority groups? And many felt the need to find a fresh constitutional interpretation that excluded any meaning whatever from my generation’s then-traditional vision of family values, instead ruling that states’ rights trump any national interest?

As president-elect, Trump may even apply these attitudes to his Supreme Court nominees. Just as my job doesn’t require me to read judicial opinions, neither does the presidency require anyone to respect the Constitution. But Trump has offered progressive decision-makers the kind of historic opportunity that Hillary

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