It occurs to me that the current state of the U.S. Supreme Court is like climate change … which is to say, it has been ongoing for several decades and visible to anyone willing to see it developing, but it has not prompted anything but the most tepid of responses. And now that we’re experiencing the judicial equivalent of massive flooding, it’s already too late.
(I can’t decide whether this analogy is ironic or appropriate, considering this court is likely to do everything in its power to curtail efforts to reverse climate change).
I remember reading Angels in America for the first time over twenty-five years ago, and coming on the scene in which the notorious lawyer and fixer Roy Cohn—now most famous for having been Donald Trump’s mentor in the 1970s—takes the closeted law clerk Joe Pitt out to dinner and introduces him to a Reagan Justice Department apparatchik who waxes poetic about how they’re seeding the federal bench with conservatives judges. “The Supreme Court will be block-solid Republican appointees,” he enthuses, “and the federal bench—Republican judges like land mines, everywhere, everywhere they turn … We’ll get our way on just about everything: abortion, defense, Central America, family values.”
I remember reading that and thinking, wow, diabolical. And then every time I read a news item about the Federalist Society or the GOP’s SCOTUS-oriented machinations, I thought of that scene. When Mitch McConnell held the late Antonin Scalia’s seat hostage from Merrick Garland, I thought of that scene, and thought of it again through Neil Gorsuch’s hearings and the debacle of Brett Kavanagh, and of course once again when McConnell rushed Amy Coney Barrett’s nomination through in what ended up being the last days of the Trump Administration. By then, the full crisis of the American judiciary (my first inkling of which was from a play that first ran off-Broadway in 1992) was plain to see. The U.S. has been experiencing extreme judicial weather events for over a decade now; the leak of the Samuel Alito-authored decision repealing Roe v. Wade is like knowing not just that there’s a category 5 hurricane just below the horizon, but that such storms and worse are the new normal for the foreseeable future.
Recently it has not been uncommon, especially at moments of more acute racial discord, for people to post images on social media juxtaposing recent electoral maps with maps circa 1860. The red states east of the Mississippi River match almost precisely with the Confederacy; and though Biden’s win in Georgia in 2020 is a welcome disruption of that consonance, otherwise the geography or red v. blue has been increasingly entrenched since Nixon first embarked on The Southern Strategy and accelerated a shift that, sadly, was probably inevitable the moment Lyndon Johnson signed the Civil Rights and Voting Rights Acts.
There has also been, especially since Trump’s election—and even more so since the January 6 insurrection—the prospect of a “new civil war” bandied about, from think pieces to more than a few books. Most such speculations are careful to point out that any such conflict would necessarily be dramatically different from the actual U.S. Civil War—that the seemingly solid blocks of red and blue that replicate the territory of the Confederacy and the Union are deceptive; that however polarized U.S. politics have become, geographically speaking conservative and liberal factions are far more integrated than the maps allow. The divide is more urban/rural than north/south, with substantial blue enclaves in deep red states, like Austin in Texas, or big red swaths in rural California.
The pandemic shook the etch-a-sketch up somewhat, too, as urban professionals, forced to distance socially and work remotely, found the cheaper rents and real estate outside of their cities more amenable (whether the end of the pandemic reverses that out-migration remains to be seen). And when businesses decamp from states like California to states like Texas, they bring with them work forces that tend to be younger and more socially and politically progressive, muddying things further. (Let’s not forget that Florida governor Ron DeSantis’ current feud with Disney over the “Don’t Say Gay” bill was precipitated not by the company’s management, but by its workers, whose hue and cry over what they saw as an unconscionably tepid response prompted the CEO to, one assumes reluctantly, condemn the bill).
What I’m wondering today is: does the imminent repeal of Roe v. Wade herald a 21st century Great Migration? Except this time, instead of Black Americans fleeing the Jim Crow south, will it be liberals and progressives fleeing Republican states for Democratic ones? Possibly that seems like I’m overstating the case, but I think it will depend on just how far this SCOTUS will take the logic of Alito’s rationale, which is essentially predicated on the assertion that there is no right to privacy enshrined in the U.S. Constitution. Numerous legal experts have weighed in on this speculation, running down a list of landmark Supreme Court cases that hinged at least in part on the premise of the right to privacy: legal contraception, the abolition of anti-sodomy laws, interracial marriage, the prohibition of forced sterilization, and same-sex marriage. Even a year or two ago I would have not worried overmuch about such cases being overturned, thinking it unlikely that any high court, however conservative its composition, would be so retrograde. But this court’s conservative majority has demonstrated a shocking unconcern for even the appearance of being measured and apolitical. They’ve pretty much made it obvious that anything and everything is on the table. That goes also for the current spate of legislating being done by Republican-dominated states: injunctions against teaching the history of slavery, the banning of books, the abolition of sex education, and of course the aforementioned “Don’t Say Gay” bill in Florida, which looks ready to be imitated in other red states. Should any challenges to these pieces of legislation make it to a SCOTUS hearing, how likely do we think it is that the current bench would quash them?
Which makes me wonder at what point being a liberal or progressive living in a blue city in a red state becomes untenable? What would that do to the U.S. polity? There would be a significant brain drain from red states; businesses would be obliged to follow when their pool of qualified workers dried up; urban centers in red states would wither; the current political polarization would in fact become geographical, as the states lost their last vestiges of philosophical diversity and became more and more autonomous, no longer subject to any federal law or statute they felt like challenging before a sympathetic Supreme Court.
That might indeed be a recipe for a “traditional” civil war.