Harvard law Professor Mark Tushnet may deserve an A for enthusiasm, but his recent call for liberals to ram their agenda through the courts is F-grade stuff.
Tushnet, writing on the Balkinization blog in a post titled “Abandoning Defensive Crouch Liberal Constitutionalism,” apparently takes the occasion of Justice Antonin Scalia’s recent death to sound the charge and urge liberals to stop being defensive and go on the attack in trying to overturn court decisions that have hindered the liberal cause.
Declaring the “culture wars” over, Tushnet proclaims victory over conservatives — by which he seems to mean socially conservative Evangelicals, Roman Catholics and Orthodox Jews, and anyone else who thinks like them — saying, “They lost, we won.”
Since, according to the professor, conservatives failed to take opportunities for compromise, such as “trading off recognition of LGBT rights for ‘religious liberty’ protections,” they must now be dealt with in the same fashion as the United States dealt with the Nazis after World War II, by “taking a hard line (‘You lost, live with it’).”
The fact that the professor would put quotes around religious liberty suggests everything you should need to know about his personality and intent, but just in case he wasn’t clear, he adds, “When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won.”
Tushnet is a purveyor of exactly the sort of cultural elitism and prejudice conservatives have come to expect from the judiciary, and his view is what we can expect should Hillary Clinton became president, that conservatives will be treated like aliens in their own land. (It would be even worse, if that’s possible, under a Bernie Sanders presidency, which would go full-on socialist in about two seconds flat.)
The professor should take note: The “culture wars” are not over, no matter how you may wish it were so, and they will never be over so long as conservatives remain.
The only thing you accomplish by trying to force your liberal agenda through the courts and curtailing constitutional protections of rights like those protected by the First and Second Amendments, is increasing the likelihood that when the “culture wars” finally do come to a head, they won’t be decided in a courtroom, and liberal weasels who teach law at Harvard won’t be able to talk themselves out of the consequences.