Many progressives are expressing alarm at the retirement of Supreme Court Justice Anthony Kennedy — and rightfully so. It is alarming that a president who has shown such disregard for human rights and the Constitution will get to make another lifetime appointment to the highest court in the land.
But we need to take a sober look at what is likely to be the result of the shift of our nation’s judiciary to the right, as President Trump fills numerous court vacancies with Federalist Society ideologues throughout the judicial system. Some progressives are calling for packing the courts by adding new seats the next time Democrats are in power, but this is extremely unlikely to happen, and would only set off another round of court packing when Republicans won the next election.
Let’s face it, the courts will be solidly conservative for the next decade, at least, and perhaps much longer. What does this mean for our country?
The main effect will be the splintering of America into increasingly more powerful states that have very different cultures and governments. The progressive dream of a unified nation with strong progressive policies at the national level may be dead for a generation, because right-wing courts will strike down such policies as unconstitutional, even if progressives somehow manage to overcome gerrymandering, the electoral college, voter suppression, and other systemic obstacles to winning control of Congress and the Presidency. The progressive dream may need to shift — at least for a while — to creating exemplary governments based on our values in specific parts of the country.
Whether we like it or not, we are entering a new era of states’ rights. The first seismic shift in this direction will be the overturning of Roe v. Wade, which will likely result in abortion being completely illegal in 20 states.
And that may just be the beginning. Within the next couple of decades, we could be living in a country where many Blue States have legal abortion and marijuana, robust social assistance programs such as universal basic income, free or subsidized public college, a high minimum wage and strong worker protections, and strict regulations to protect the environment — while Red States will be places where abortion is banned, a vigorous drug war is waged, police have sweeping powers, Evangelical Christianity gains increasing influence in the educational system and takes over most social services for the poor, and businesses are mostly unregulated.
The United States of America may start to look more like the European Union — a loose union of states with very different cultures and laws.
A conservative judiciary will start the ball rolling, but what will really make it pick up steam is voluntary self-sorting of Americans into states and communities with their preferred liberal or conservative culture and political leanings. This has already been happening, but will accelerate rapidly in the post-Trump era. People won’t want to live anymore in places where their values and political beliefs are unwelcome and have little influence.
The Red Hen incident is a canary in the coal mine, showing that Americans of all political persuasions increasingly are deciding they’d rather shun people who don’t share their values, rather than even be in their physical presence anymore. And since politics nowadays is mostly about competing sets of values rather than differing policy proposals to achieve goals based on shared values, the tribal sorting of America will intensify, and will become increasingly geographical as people choose to “vote with their feet” to get away from the Reds or the Blues that they despise.
Trump is the trigger for this Great Sorting of America. I suspect that the history books will record that his ascension to the presidency marked the transition from the post-World War II consensus of a strong central government attempting to work for the general welfare of all the American people (whether in somewhat more conservative or liberal versions of that vision), to a new era of devolution of power back to states and localities as the United States becomes a looser union.
Can we hold the country together as more of a Constitutional union of states, rather than a true “nation” from sea to shining sea such as seemed to be emerging in the mid to late 1900s? I hope we can. Good fences make good neighbors, as the saying goes. America is a big place, and perhaps if conservatives live their own way in the states where they are the majority, and liberals do the same, and we mostly stop arguing with each other about what kind of culture should dominate and enforce its will upon the whole country, we can come to respect each other’s cultural differences, understanding that the difference between California and Alabama may be more like the difference between Sweden and Hungary. This process of detachment will take time, and will involve stages of grief and life-changing shifts for many people.
I understand that many progressives see this as defeatism, and want to continue to work for a nation in which progressive values are enshrined into law everywhere in America. I respect that point of view and sympathize with it. But I wonder if it’s a realistic goal at this time, given the way our country is dividing along ideological lines with an intensity not seen since the Civil War — and given the structural advantages of conservatives in the national government, many of which cannot be changed without Constitutional amendments that would never gain the required supermajority.
Perhaps when a new generation of progressive political leaders emerge and gain power — Millennials such as Alexandria Ocasio-Cortez — and after progressive states have proven themselves to be much better places to live than conservative states during the period of division ahead, then, in the mid 21st century, there will be a new rising of progressivism into power at the national level. Things tend to go in cycles. But a cyclical resurgence of a nationwide left is far from a sure thing, and progressives may first need to let conservatives try things their own way for a while and learn from the unpleasant consequences.
I’m writing this to get people thinking. Nobody knows what the future holds, and I don’t claim to know what is the best answer for America’s profound existential problems today. But I think we all need to consider a sobering possibility: that to avoid disaster, we may need to reconcile ourselves to an America in which Red and Blue stop fighting each other and politely disengage from each other for a good long while.