Showing posts with label legal history. Show all posts
Showing posts with label legal history. Show all posts

Saturday, November 05, 2022

How Long Will The Second Redemption Last?

If you asked me to summarize the contemporary conservative legal mantra, it would go: "We had to suffer through the Second Reconstruction; so you're going to endure a Second Redemption."

There's little doubt in my mind that we are in the era of the Second Redemption: a fundamentally anti-democratic backlash against racial equality and progressivism more broadly that has captured elite institutions (particularly the federal courts) and seeks to entrench minoritarian political power as against liberal political priorities. In particular, the Supreme Court right now is not just conservative, it acts basically as the Republican Party's anti-democratic goon squad for the precise purpose of decoupling conservative political power from democratic accountability.

The cast of cases that fit this mold is sprawling. You have the cases that hoist nigh-insurmountable barriers to popular progressive priorities (Bruen, Citizens United, Parents Involved) , those that overturn prior precedents which had secured rights and projects central to the liberal project (Dobbs, the Harvard/UNC affirmative actions cases), and -- most worrisome to me -- the cases which directly undermine the very structures of representative democracy that reflects the popular will (Shelby County, Rucho, Brnovich, the "Independent State Legislature" cases). 

That conclusion felt quite the downer, and so it got me to thinking how long the Second Redemption is likely to last. Of course, the whole purpose of the Redemption -- first and second -- was to insulate itself from political recourse, so it is far from guaranteed that even wildly unpopular judicial machinations will be abled to be countered by "democratic" responses. Nonetheless, I am generally of the view that politics is cyclical -- periods of democratic progress are followed by backsliding and regress, which eventually yield to renewed progress again. The big question is simply how long the cycles last. And while there's obviously no guarantee that the Second Redemption will mirror the timeline of the first, it does offer at least a point of reference.

The original Redemption refers to the successful reclamation by White supremacists of political institutions in the American south that had temporarily been integrated during Reconstruction. Its beginnings are typically dated to 1877, and generally had succeeded by the 1890s. However, the "Long Redemption" -- if by that we mean the period in which the Supreme Court was generally a force for anti-democratic retrenchment as against progressive political initiatives -- continued for quite awhile after that, and probably should not be deemed over until the "switch in time" of 1936.*

1877 to 1936 -- that's nearly sixty years. Well, that's not too comforting, even if it does suggest that eventually the reign of the witches will pass. But then the next question is, "how far along are we in the Second Redemption"? Put differently, when did the Second Redemption begin? Many legal commentators have dated the beginnings of the earnest judicial backlash to the Second Reconstruction (typically dated roughly from 1945 - 1968) as starting in the 1980s with the Reagan administration (though some would place it even earlier, in the Nixon administration). If that's the case, we may be pretty far along in the process!

Of course, what settled for a conservative backlash in 1980 is positively tame compared to what's happening right now. But the Long Redemption was not a slow crest followed by an equally slow decline. Some of the most reactionary justices and judicial decisions were present right up to the end of the line (Justice McReynolds could give even the most racist 19th century SCOTUS justice a run for his money). There's good reason to think that anti-democratic forces in elite institutions will be at their most extreme and fight most fervently when they sense that the end may be nigh.

We can only hope.

* While 1936 is more often viewed as a dividing line for the Court's economic jurisprudence -- the abandonment of Lochner-ism and the accession to New Deal programs -- it also tracks when the Court started to pivot towards more concern for racial minority rights. Carolene Products, whose "footnote 4" became the ur-text of the liberal judicial approach to civil rights, was decided in 1938. Missouri ex rel. Gaines v. Canada, which augured the changing of the tides against school segregation, was decided that same year.

Tuesday, February 02, 2010

Tomorrow's Another Day Roundup

Busy busy day tomorrow -- may not have much time for blogging. Better clear the browser now.

* * *

If Nancy Grace could take on Nancy Grace.

North Korea seems to have ditched the communism facade completely, and now is embracing full on classic racist fascism.

Top defense officials are onboard with repealing DADT.

Relatedly, Senator John McCain (R-AZ), who previously indicated that support from the top brass was what he needed to reconsider his support for DADT, has let anti-gay animus trump prior statements of principle. Stunning.

Why we should be especially thankful for our gay and lesbian servicemembers. Their sacrifice for a nation that fundamentally still rejects their equal citizenship is heart-rending.

Michael Klarman pops the myth that courts have been historical friends of racial minorities.

It's so scary when Jews have opinions and try to convince others to share them.

What's the trajectory of the California gay marriage litigation?

Monday, April 20, 2009

Yet Another Tendril Extended

Now that the first post is up, I guess I can break the news. I have been hired (that's right -- it comes with coin) by the University of Chicago as a student blogger for the UChicago Law Faculty blog. My portfolio is the American Legal History Workshop. Basically, there is a talk every other Thursday by some illustrious academic, for which I give a summary and commentary. Rinse, wash, repeat.

For your purposes, this is meaningless -- the stuff I'm writing is material that I wouldn't be doing on my blog anyway. But for those of you interested in some of the most fascinating scholarship being developed in the field of legal history, I'll let you know when a new post is up.

The first post is on USC Professor Mary Dudziak's ongoing project "Law, War, and the History of Time", and can be found here.