Neoconservative Politics and the Supreme Court

Law, Power, and Democracy

Stephen M. Feldman

• Publisher: NYU Press
• Year: 2012
• ISBN:
  9780814770764
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In this concise, timely book, constitutional law expert Stephen M. Feldman draws on neoconservative writings to explore the rise of the neocons and their influence on the Supreme Court. Neocons burst onto the political scene in the early 1980s via their assault on pluralist democracy’s ethical relativism, where no pre-existing or higher principles limit the agendas of interest groups. Instead, they advocated for a resurrection of republican democracy, which declares that virtuous citizens and officials pursue the common good. Yet despite their original goals, neocons quickly became an interest group themselves, competing successfully within the pluralist democratic arena. When the political winds shifted in 2008, however, neocons found themselves shorn of power in Congress and the executive branch. But portentously, theystill controlled the Supreme Court. Neoconservative Politics and the Supreme Court explains how and why the neoconservatives criticized but operated within pluralist democracy, and, most important, what the entrenchment of neocons on the Supreme Court means for present and future politics and law.

1

Reagan, Cross-Pollination, and Neoconservatism: An Introduction

For more than twenty-five years, starting in 1980, neoconservatives stood at the intellectual forefront of a conservative coalition that reigned over the national government. Neocons earned this prominent position by leading an assault on the hegemonic pluralist democratic regime that had taken hold of the nation in the 1930s. Pluralist democracy accepts ethical relativism: No preexisting or higher principles limit the interests, values, and goals that can be urged in the democratic arena. Thus, individuals and interest groups legitimately seek to satisfy their own interests and values, whatever their content. From the diverse asserted interests and values, the government pursues those goals that emerge through certain established procedures. Process rather than substance determines legitimacy.¹

While neoconservatives began to assail pluralist democracy in the 1960s and ’70s, they simultaneously advocated for a resurrection of republican democracy, which had predominated before the 1930s. Republican democratic theory declares that virtuous citizens and officials pursue the common good rather than their private interests. Thus, neocons rejected the ethical relativism that supports the pluralist democratic regime and instead championed “traditional American values” or virtues that were to direct society toward the common good. In a sense, neocons wanted the United States to return to Pleasantville: They believed that the nation would be renewed by returning to republican democracy, just as the protagonist in the movie Pleasantville believed his life would improve if he were to live in the eponymous small town of an old black-and-white television sitcom.²

Well, things didn’t go as expected in Pleasantville—or for the neocons. Most important, they never succeeded in undermining the pluralist democratic framework. To the contrary, the necons themselves operated as just one more interest group competing within the (pluralist) democratic arena, albeit a highly successful one. And then the political winds shifted in 2008: The neoconservatives found themselves out of power in Congress and the executive branch. Even so, at that point, they were not totally bereft of vigor. Neoconservative justices still controlled the Supreme Court and will continue to do so for years to come. Of course, with congressional elections every two years and presidential ones every four, the precise ratio of conservative Republicans and progressive Democrats in official positions will vary depending on the most recent electoral results. When Democrats control the coordinate branches, conflict with the Court in partisan-charged cases will be intense and frequent. Decisions such as Citizens United v. Federal Election Commission could become the norm. To describe Citizens United in stark terms, the five conservative justices outvoted the four progressive justices to reach the conservative outcome, holding that congressionally imposed limits on corporate and union spending for political campaign advertisements violate the First Amendment. Undoubtedly, when Republicans control the coordinate branches, such vivid conflict will be less likely. Yet, even during times of Republican sway, the aggressive and confident neoconservative justices will push ahead, seeking to implement their distinct interpretation of the Constitution, which will inevitably clash with congressional and executive actions. In fact, Congress enacted the campaign finance restriction invalidated in Citizens United in 2002, when Republicans controlled the House of Representatives and the presidency.³

Hence the question: What consequences will follow from having neocons steering the Court for the foreseeable future?

At the outset, neoconservativism should be distinguished from other political outlooks. Start with a distinction between progressivism (or liberalism) and conservatism. In general, progressives resist governmental efforts to impose moral values but favor governmental intervention in the economic marketplace when necessary to promote equity. Conservatives often favor both governmental and nongovernmental promotion of traditional moral and religious values yet prefer an unregulated economic marketplace because it ostensibly rewards individual merit. To understand neo-conservatism per se, though, it must be distinguished from other forms of conservatism. After World War II, traditionalist conservatives such as Russell Kirk expressed a Burkean reverence for tradition and religion as sources of values. They preferred minimal or restrained government, but they brooded that individuals might abuse liberty and become licentious. Libertarian conservatives, inspired by Friedrich Hayek’s Road to Serfdom, emphasized the protection of individual liberties, especially economic liberties. They worried little about license, and for that reason, they stressed minimal government above all else. In contrast, neoconservatives were more willing to accept an assertive government, but one that pursues (conservative) goals embodied in the concept of the common good. Confident and aggressive, neocons believed that they could rationally discern universal truths and the best policies for achieving desired goals consistent with those truths. Because supposedly not all individuals could decipher the universal truths, some neocons advocated for the use of tradition and religion to inculcate what they deemed to be suitable values.⁴

After the neoconservatives rose to political prominence in the 1980s, a new or altered form of traditionalism emerged: paleoconservatism. Some commentators viewed paleoconservatism as no more than traditionalism under another name, some viewed it as traditionalism on steroids, and some viewed it as a whole new (or very old) form of conservatism. Like traditionalists, paleos such as Patrick Buchanan emphasized traditional and religious values, but paleos were far less optimistic. Traditionalist conservatives generally believed that traditional American values continued to be vital, though they needed to be vigorously defended. Paleos tended to be bitter and angry: They “can fairly be said to despise much of contemporary American life.” They feared that Americans were “irrevocably cut off from a living, sustainable tradition,” so they would insistently “hark back to that which is lost.” With their echoes of the pre–Cold War “Old Right,” paleos vehemently criticized the neocons as “interlopers,” as not being truly “conservative at all.” Especially wary of neoconservative foreign policy, paleos denounced neocons as “an alien cabal intent on promoting a utopian, Bolshevik revolution around the globe.” Neocons, in turn, worried that the paleos displayed “a neoisolationist nativism tinged in a few cases with antisemitism.”⁵

To be sure, these definitions of conservatism and liberalism as well as the competing forms of conservatism are roughly hewn, and such generalizations can be misleading. For instance, as is often noted, conservatives tend to protect and celebrate the status quo, while progressives question it. Yet, over recent decades, neoconservatives have led the charge against the pluralist democratic regime—that is, against the status quo. Besides, in the 1980s, President Ronald Reagan managed to consolidate the various forms of conservatism under a big tent. Undercurrents of disagreement always remained, but the competing conservative movements, in a sense, cross-pollinated. Traditionalists, libertarians, and the general public adopted many neoconservative views, which became well publicized in the mainstream media, while neoconservatives shifted to adopt positions more closely aligned with those of their conservative competitors. This cross-pollination arose partly because of Reagan’s charisma; somehow, all conservatives could accept him as their leader. Then the reality of Reagan’s political success contributed to further conservative intermixing. When conservatives first tasted political power with Reagan, they naturally hungered for more. “The task,” explained neocon Irving Kristol, “was to create... a Republican majority—so political effectiveness was the priority.” Conservatives of diverse stripes realized they could garner more power only by working with other conservatives. Francis Fukuyama, a neoconservative intellectual leader during the 1980s and ’90s, admitted that, after a while, “it became increasingly hard to disentangle neoconservatism from other, more traditional varieties of American conservatism.” During this time, the categorization of particular conservatives as one type or another became problematic. Regardless, with Republicans occupying the White House for so many years since 1980, numerous Supreme Court as well as other federal judicial appointees were unequivocally conservative, if not neoconservative. Currently, four justices can be reasonably classified as neocons: Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito.⁶

New York Times columnist David Brooks has written, “If you ever read a sentence that starts with ‘Neocons believe,’ there is a 99.44 per cent chance everything else in that sentence will be untrue.” If Brooks is correct, if most descriptions of neoconservatism get it wrong, whether intentionally or unintentionally, then what, precisely, is neoconservatism? Hence, the first goal of this book: to explain neoconservatism, its purposes and policies. This goal necessitated my method: to present a narrative history of neoconservatism. To understand neoconservatism, one must go to its origins and follow its development, especially if one seeks to avoid the typical mischaracterizations that arise because of media caricatures as well as its cross-pollination with other conservative movements. Indeed, critics often use the label of neoconservatism as an epithet (like “liberal” in the 1980s). Consequently, I describe why early leaders, such as Irving Kristol and Norman Podhoretz, transformed from being liberals into neocons. Most important, I explain how neoconservatism fits within our (pluralist) democratic system; such an understanding is crucial to a full appreciation of neoconservatism, given that the neocons sharply attack pluralist democracy. This focus on pluralist democracy raises several questions that need to be addressed: Why did pluralist democracy supplant the republican democratic regime in the 1930s? Why did Leo Strauss and other European émigrés criticize the emerging American pluralist democratic regime in the 1940s and 1950s? Why did incipient neoconservatives then draw specifically on Straussian themes in forming their own critiques of pluralist democracy? How, meanwhile, did the pluralist democratic regime evolve during the period running from World War II to the turn of the twenty-first century? My position, in part, is that the entrenchment and evolution of pluralist democracy combined to thwart neoconservative efforts to achieve their overarching purpose: to undermine the pluralist democratic regime and return us to republican democracy.⁷

This neoconservative failure nonetheless leads to my second major goal: to explain how neoconservatism succeeded in numerous significant ways, even though it did not (and could not) fulfill its ultimate end. In particular, I focus on how neoconservatism influenced Supreme Court adjudication in several realms of constitutional law. My position, here, is that neoconservative justices have cut and pasted: cutting elements of pluralist democracy and pasting in swatches of republican democracy, when possible, while largely leaving the pluralist democratic fabric intact. The Court, for example, decided Establishment Clause cases and modified First Amendment doctrine to promote “moral clarity,” a favorite neoconservative theme, even though the justices otherwise reinforced the pluralist democratic regime (for instance, by continuing to use techniques, such as balancing tests, characteristic of pluralist democracy).

What, then, does the future hold? This is the subject of the final chapter, which has two specific goals. First, it explores how the neoconservative justices might shape constitutional law over the next several years. In which subject areas might or might not neocons stamp their imprint? Second, it suggests how progressives might confront the challenge of a Court infused with neocons. What strategies might effectively diminish neoconservative influence? My position is that the neoconservative justices, always needing to hold the cautiously conservative Justice Anthony Kennedy’s vote, will likely continue to cut and paste with moderate success. Given this reality, progressives who must bring their cases before the Court (and they should avoid doing so whenever possible) should aim their arguments at a single target: Justice Kennedy. In most politically controversial cases, progressives will win only if they can persuade Kennedy to cast his vote with the liberal rather than the neoconservative bloc. And even if they cannot win, progressives will benefit if they can nudge Kennedy enough to the left that he impels the neocon justices to temper their positions, to diminish the forcefulness of their neoconservative pronouncements.

Three caveats clarify my interrelated goals. First, even though the final chapter recommends progressive strategies, I wrote the book with a sympathetic ear: I aim to make sense of neoconservatism within the historical context in which it arose. To reach a full understanding of any intellectual or political movement, one must approach it from the inside. One must appreciate why those within the movement believed in their various efforts and strategies, why such efforts and strategies seemed to insiders at the time to be reasonable or even compelling. Given this, one should remember that the early neoconservatives were disenchanted liberals. From their perspective, then, they sought to appreciate the prominence of the individual without descending into narcissism or solipsism. They sought to appreciate that self-interest inevitably motivates but must be tempered with values traditionally associated with virtue, like independence, self-reliance, and altruism. They sought to appreciate the importance of diversity without tolerating decadence. They sought to appreciate the beneficence of reason without allowing it to push society into an abyss of relativism. Whether these are worthwhile objectives and whether the neoconservative efforts were justified, I leave to the reader to decide.

Second, I describe the Court—or more precisely, four of the justices—as being neoconservative rather than merely conservative. The crux of my argument is that the corpus of the Court’s work over approximately the past twenty years more closely matches the themes of neoconservatism, as I define it, than those of the leading alternative forms of conservatism: traditionalism and libertarianism. Certainly, some readers will object to this characterization and maintain that, for instance, Scalia is instead a traditionalist.⁸ And, in fact, I do not insist that neoconservatism is the only accurate description of the Court (or of the four neocon justices) in all cases. In some cases, one might reasonably conclude that such-and-such a justice sounds more like a libertarian, or that another justice sounds like a traditionalist. Nonetheless, I still argue that neoconservatism best categorizes the Court’s decisions and opinions over the preceding two decades. Two predominant factors, though, are likely to generate categorization disputes. First, as already discussed, the various forms of conservatism have cross-pollinated in recent years to the point where their boundaries sometimes blur. Second, neoconservatism, traditionalism, and libertarianism, even when properly defined, overlap. More specifically, neoconservatism shares important themes with both traditionalism and libertarianism, but, significantly, traditionalism and libertarianism diverge in many instances. Thus, numerous cases might fairly be characterized as both neoconservative and traditionalist, or both neoconservative and libertarian, but far fewer cases could be called both traditionalist and libertarian (and those few cases would also be neoconservative).

Third, and finally, I do not critically analyze either neoconservatism or the neoconservative reliance on Straussian themes. I do not attempt to demonstrate that certain neoconservative policy prescriptions might fail in any of the following ways: to follow from broader neoconservative principles, to tie logically together in a coherent whole, or to reflect Strauss’s writings accurately. All of which is not to say that I am uncritical. Rather, my critique arises from within the historical narrative of neoconservatism: thus, my argument that neoconservatives did not and could not achieve their overarching purpose of resurrecting republican democracy. Whether one agrees or disagrees with neoconservative tenets, one should recognize that in the venue of the Supreme Court or elsewhere neoconservatism bears inherent limits because of its social and cultural context. A return to Pleasantville, in the end, is no more than a fantasy.

2

From Republican to Pluralist Democracy

Republican Democracy

From the framing through the 1920s, the United States operated as a republican democracy. Citizens and elected officials were supposed to be virtuous: In the political realm, they were to pursue the common good or public welfare rather than their own private interests. The 1776 Virginia Bill of Rights, for instance, stated: “[G]overnment is, or ought to be[,] instituted for the common benefit, protection, and security of the people, nation, or community.” The pursuit of “partial or private interests” amounted to the corruption of republican government. Therefore, the promotion of civic virtue was paramount. “[N]o free government, or the blessings of liberty, can be preserved to any people,” the Virginia Bill of Rights pronounced, “but by a firm adherence to justice, moderation, temperance, frugality and virtue and by frequent recurrence to fundamental principles.” Within a republican democratic system, individual rights and liberties were important, but the common good always bounded their scope. The government, that is, could restrict individual rights and liberties if it did so in pursuit of the common good.¹

Political leaders of the framing generation claimed that the American people were especially well suited for republican democratic government. An agrarian economy where “almost every man is a freeholder” engendered a material equality unknown elsewhere, particularly in Europe. This widespread land ownership imbued individuals, moreover, with an independence that intertwined with the community and promoted a virtuous commitment to the common good. “I think our governments will remain virtuous for many centuries,” wrote Thomas Jefferson, “as long as they are chiefly agricultural; and this will be as long as there shall be vacant lands in any part of America.” And with an overwhelming number of Americans being committed to Protestant...