The courts in America became an agent of social discord

Daniel Henninger writes that “The United States needs to settle down politically.”  From Kavanaugh and the Culture Wars in today’s WSJ:

The Democratic opposition to any Supreme Court nominee from Mr. Trump in 2018 has been about virtually one thing: the Roe v. Wade decision of 1973. That was 45 years ago. And that is about the time the culture wars began in America. There have been casualties since then, a lot of them.

Whatever one thinks about Roe, the court for the first time involved itself in a subject that for many Americans was profoundly and overwhelmingly moral (some might cite Engel, the 1962 decision banning school prayer). Through the 1970s and ’80s the religious right emerged as a politically active opposition to America’s cultural direction. But its rise produced a more powerful, media-driven counter-movement of aggressive secularism.

More than ever before, many matters that entered American politics, such as racial preferences or various disputes over free speech, were rerouted away from legislatures and into the judicial system, with both sides contending that the opposition wasn’t merely wrong but immoral.

The Obama presidency expanded the alternative battlefield. Explicitly identifying its impatience with the legislative branch, the Obama White House ordered administrative agencies to execute contentious policies affecting sex and race.

The Supreme Court, in its 2015 Obergefell decision, written by Justice Anthony Kennedy, established gay marriage as a protected right. In a recent essay on these pages, Walter Olson made a definitive argument that this decision will survive in a conservative Supreme Court. Roe v. Wade will survive, too, not least to avoid social upheaval.

Shortly after the Obergefell decision, something else of cultural and political significance happened. Within months, the left began to agitate for transgender rights, another moral claim whose substantive meaning is a mystery to most Americans.

Liberals remain incredulous at Mr. Trump’s election. But nearly half the electorate voted for him, and among the reasons is that today a lot of people—across all income classes—feel they are really being jammed by the culture. Progressive jurisprudence had a lot to do with this. Liberals won their share of court decisions, but at a price: The courts in America became an agent of social discord.

It would be good for the country’s stability if a Kavanaugh Court disincentivized the left from using the courts to push the far edges of the social envelope. This is not about turning back the clock. It is about how best to resolve bitter social and cultural disputes in the future. It is about no longer using the courts to make triumphal moral claims against the majority.

In the Kavanaugh Court, extending rights claims beyond their already elastic status is going to require more rigor than appeals to a judge’s personal sensibilities or a theory of social organization developed in law journals.

Advocates for social change involving race, gender, identity and such will have to convince representative majorities, elected by voters, to agree with their point of view. Unlike in the past four decades, the high court will more often weigh in after, not before, the political process has happened.

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