Justice Samuel Alito is right.
It’s not about the Constitution, or the use of history, or whether Donald Trump has full immunity for crimes committed while in office. No, Justice Alito is right that there is an intractable conflict in American politics.
As he told Lauren Windsor, a liberal documentarian who surreptitiously recorded their conversation at a dinner hosted by the Supreme Court Historical Society, “One side or the other will win.” He continued: “There can be a way of working, a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really cannot be compromised. They really cannot be compromised. So it’s not like you’re going to split the difference.
It is clear from his rhetoric and jurisprudence that Alito is talking about a culture war. In a 2020 keynote speech At a Federalist Society rally, for example, Justice lamented the changing attitude toward same-sex marriage. “We cannot say that marriage is the union between a man and a woman,” Alito said. “Until recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.
In an address delivered in 2022 in Rome for the Notre Dame Law School’s Religious Liberty Initiative, Alito warned: “Religious freedom is under attack in many places because it is dangerous to those who want to hold total power.” » Later, in the same speech, he mocked foreign criticism of his decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and allowed states to enact draconian (and sometimes deadly) restrictions ) on abortion and bodily autonomy.
And in May, Alito issued a similar warning, telling the graduating class at Franciscan University of Steubenville that religious freedom is “in peril.” “As you venture out into the world, you may find yourself in a job, community, or social setting where you are pressured to endorse ideas you don’t believe in, or to abandon your core beliefs,” he said. he declared. “It will be up to you to hold on. »
Alito’s vision of quasi-tyrannical religious intolerance does not seem to correspond to the reality of a country where three-quarters of Americans claim one religious affiliation or another, where a large majority of them identify as Christian and where profession of religious belief is, in most places, a de facto requirement for access to public office.
Yet there is a fundamental conflict in this country. But it’s not the one Alito imagines. Rather, it is a conflict between those who hope to preserve and expand American democracy and those who aim to stifle it.
There is, of course, Trump, who is running his third White House campaign as an unapologetic authoritarian. He has promised vengeance and retaliation for all efforts, however halting, to hold him accountable for his criminal behavior, including his efforts to overturn the results of the last presidential election. And he is supported by a group of apparatchiks ready and willing to impose their autocratic vision on the entire country.
Among the most radical is Russ Vought, who served as budget chief under Trump during a term that culminated in an attempt to strip civil service protections from tens of thousands of federal employees so that Trump could replace them with loyalists. During a second term, Vought hopes to go all the way and provide the federal bureaucracy, as Beth Reinhard reports for the Washington Post“die-hard disciples who would wage culture wars against abortion and immigration.”
Convinced that the United States is in a “post-constitutional” period where he and like-minded ideologues must overturn the political order in order to save it, Vought wants to revive the president’s power to “seize” appropriations of Congress, a strategy that was banned by Congress following the Nixon administration. Like Trump, he also wants to use the Insurrection Act to suppress protests and domestic opposition with the military. Vought sees a future of Anglo-Protestant supremacy within the framework of the “original” Constitution.
Efforts to turn the national government against American democracy are reflected, at the state level, in efforts to reduce avenues for political dissent and electoral competition.
In states where Republicans have banded together to form nearly impenetrable legislative majorities, they have also taken steps to try to close the avenues the general public could take to have their views honored in government. In Arizona, For exampleRepublicans have, as the Bolts news site puts it, “placed a measure on the November ballot that would severely restrict direct democracy in Arizona by imposing strict geographic requirements on where organizers must collect signatures.”
It’s a response to an initiative that, if successful, would enshrine the right to abortion into Arizona state law, bypassing the Republican-led state legislature and anti-abortion. Republicans in other states have made similar efforts to restrict direct democracy in the face of publics that are not aligned with the most doctrinaire conservative ideologues.
The Republican Party of Texas has gone further than that of Arizona or any other country in its hostility to democracy. Last month, delegates to the state party convention approved a platform that would effectively require some sort of electoral college for statewide elections. To win the governor’s seat, a candidate would need to win a majority of Texas’ 254 counties. Democrats, concentrated in the state’s big cities, will never be able to win, regardless of the majority obtained in the elections. Republicans, who dominate the state’s vast rural expanse, would rule in perpetuity.
Conservative Republicans, who have adopted “stop the steal” and are already cast doubt on any outcome other than a Trump victory in November, do not accept the legitimacy of their Democratic opponents. They believe that only they have the right to govern. And they work, from the bottom up and the top down, to limit as much as possible the right of the people to choose their leaders.
Justice Alito is participating in this effort from his seat on the Supreme Court. (Just a few weeks ago, he wrote the majority opinion upholding a de facto racial gerrymander in South Carolina.) And once again, he’s right. There are irreconcilable conflicts and “differences over fundamental things that really cannot be compromised.” And the most fundamental issue on which there can be no compromise is the question of American democracy. Will the Republic hold up or will we fall into a future of minority government?
