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Many years ago I got an email from my brother urging me to register my opposition to some new forest service regulations that were about to take effect. My brother is an avid snowmobiler and he claimed that the new regulations would severely impact snowmobiling in a nearby national forest. As I recall he sent me to a webpage where the injustice of the new regulations were laid out in minute detail, and with much ranting.

Obviously my first inclination was to help out my brother, but from reading the webpage it was apparent that the regulations were just the latest battle in an ongoing war between the snowmobilers and local environmentalists. And out of curiosity I went looking for the other side of that war. In particular I wanted to know what they thought about the new regulations. After a little bit of sleuthing I came up with the name of the group on the other side of the issue and went to their webpage. As I said this was many years ago, so I can’t remember the identities of either group but I do remember thinking that as much as the snowmobilers hate these new regulations that the environmentalists must love them.

Instead, I discovered that the environmentalists appeared to hate the new regulations just as much as the snowmobilers did, and there was a similar rant about how horrible and unjust the new regulations were on the environmentalist’s website. I honestly don’t recall any longer if they were also urging people register their opposition, but they very well might have been. Regardless, it was clear that they were also not happy. I suppose this shouldn’t have surprised me. Bureaucracies constantly have to split the baby in such a way that no one is happy. But still, one can’t help but feeling that it would have been better to make at least one of the sides happy than to make both equally miserable.

I was reminded of this story recently as I was thinking about the current liberal-conservative dynamic, and especially the fact that these days, nearly everyone, regardless of their political persuasion, seems convinced that their side is losing. Immigrants are convinced they’re all about to be deported. Christians feel under attack by an increasingly secular society. Democrats and liberals are dismayed by the election of Trump and Republicans and Conservatives are alarmed by the increasing strident social justice activism.

Of course it’s one thing to lose a battle it’s another to be losing the war, and to me it seems obvious that on any time horizon longer than about a year, the left/liberal/progressive side has been winning the war. Though, while this seems obvious to me, it’s definitely not obvious to some of them. In particular I remember seeing a comment on Facebook from a high school acquaintance, wherein he confidently asserted that outside of same sex marriage and a couple of other items (unfortunately I can’t find the original comment) that the right has been dominating politics and getting their way for decades. I have a hard time imagining how even the most partisan individual would arrive at that conclusion, but given that I’m neither liberal, on the left, or especially progressive, perhaps I’m just another person who is convinced that their side is losing. But what does the evidence actually say?

Let’s start by looking at a battle the left definitely lost, though before I do, I should clarify that I know that by using “the left” as all purpose term to identify one side of things and “the right” as my all purpose term for the other side that I’m hand waving all manner of ideological differences and lumping people together who may not only disagree with what I’m about to say, but they may have significant disagreements with each other. With that caveat in place let’s move on.

The biggest loss the left has suffered recently is obviously the election of Trump. But, recall, and this is something I’ll be mentioning a lot, we need to distinguish between losing a battle and losing the war. The last election was a particularly hard fought, and acrimonious battle. And without a doubt the left lost that battle (though, when it’s all over we may decide that we all lost.) But did the left lose the war? Losing a decisive battle can mean you lost the war, but was the election of Trump decisive? It certainly doesn’t seem that way. First, Trump’s victory has so far not amounted to much. Every proposal he’s made has been fought tooth and nail. Second, and closely related, the opposition is anything but cowed. If you need proof of this compare the Russian and Chinese opposition to the current American opposition. Finally, in a democracy none of the “battles” should be decisive because you reset the board and have a new “battle” every four years (or two if you count control of the legislature.) With all this I don’t think there’s any reason to declare that the left has lost the war.

However, looking deeper you may recall an argument I made in a previous post that the Supreme Court, and the judiciary more broadly, are gradually becoming the de facto rulers of the country. If you buy into this argument, (and certainly many people called it the most important issue of the 2016 election) Then, depending on how many justices Trump gets to appoint and depending on how conservative they end up being you could certainly imagine a scenario where this particular battle ended up being rather decisive. However I would offer up a couple of reasons why this is unlikely.

  1. Trump is unlikely to get the opportunity to replace more than one of the court’s liberal judges. To do even that, one of them would have to die (Most likely Ginsburg, but maybe Breyer) since none of them would dare to retire while Trump is President. Slate has this great calculator based the CDC tables which tells you the odds of any given judge or combination of judges dying and it puts the chances of one of at least one liberal justice dying at 56%. If this is the case then it is conceivable that the conservatives could end up with a 6-3 majority on the bench, assuming that Kennedy and Roberts continue to be counted on the conservative side of things. Which brings me to the second point.
  2. Both Kennedy and Roberts have become increasingly liberal over time. (See this graph.) In fact it’s quite common for a justice nominated by a Republican president to end up on the liberal wing of the court. Recent examples of this are: Blackmun, Souter and Stevens. The opposite, Democratic Presidential nominees ending up on the conservative wing, is basically unheard of. Thus even if Trump does manage to flip a liberal seat to a conservative one, there’s a good chance that one of the judges currently considered to be conservative will end up mostly siding with the liberal wing of the court. Witness Roberts’ votes on Obamacare and Kennedy’s vote on Same Sex Marriage.

On the first point, we mostly just have to wait and see what happens. On the second, though, we should get a pretty good idea of whether Trump is “winning” when the Supreme Court gets around to ruling on his travel ban, which will probably happen sometime this fall.

The best case scenario for Trump is a 5-4 ruling upholding the travel ban and overturning the rulings of all the lower courts. Then if he can hold on to that basic split, and if a liberal justice dies, and if he can get a nominee through the Senate (which is by no means a certain thing) and if, by this time, Kennedy or Roberts hasn’t drifted over to the liberal side of the court then we might end up with a 6-3 conservative-liberal split on the Supreme Court. This would be pretty bad for the left. But I hardly think it would represent losing the war. In the mid 90’s seven of the nine justices had been appointed by Republican Presidents and despite this, to the best of my knowledge Roe v. Wade, for example, was never in any danger of being overturned.

This all assumes that the Supreme Court overrules the lower courts, which is by no means certain. Alan Dershowitz, a noted liberal attorney, thinks they will, but no one (including Dershowitz) would be surprised if they didn’t. And if they don’t, then at best the election of Trump is a temporary setback for the left, considering that he won’t have been able to get even his signature initiative past the courts.

That may have been a deeper dive than you wanted into the Supreme Court, but I spent so much time on them because, in the final analysis, particularly if you consider the US, that is where most of the recent battles have been decided, so if any side was going to lose permanently it would probably involve the court in one respect or another. Of course all of the foregoing assumes that Trump plays by the rules and many would argue this assumption is already invalid given that he’s been breaking rules left and right. Still I don’t see him breaking any of the big rules (suspending elections, declaring martial law, trying to stack the court, etc.) Also recall that we’re talking about who’s winning now, and while it’s appropriate to consider the near future in that assessment the farther away from the present we get the less value our assessment has.

I started off by looking at the area where you could make the strongest claim that the left is losing. Outside of Trump’s election the left’s case that they’re losing gets more tenuous. Though, another area where the argument could be made is with respect to the media, particularly if you start including social media. This point is closely related to the last one I made about the election, since many people have claimed that it was Trump’s mastery of social media (especially Facebook advertising) which lead to his upset victory. But unlike looking at the voting records of the Supreme Court Justices to detect a liberal-conservative split, trying to decide who’s winning the media battle is a lot more complicated, though if you want to argue that Trump’s election proves that the conservatives are at least doing well in this battle I would certainly grant that. But as far as winning goes, before you get too far into things you have to decide what winning even means outside of something like an election. Is the right winning because Fox News is the #1 cable news network? (Though with Trump as a target, Rachel Maddow has been doing pretty well recently.) Is the left winning because only 7% of reporters identify as Republican? Does the rise of, so called, fact-free journalism mean that the right is winning because they’re much better at propaganda or does it mean the left is winning because the facts are on their side? Or are we really just dividing into separate echo chambers where each side is winning the game because they made up the rules and didn’t invite the other side to play? I’m inclined to think it’s this last thing…

As he does so often Scott Alexander beat me to the punch and published an examination of this issue on SlateStarCodex at the beginning of May. His article was, in turn, responding to another article that had been posted on Vox.com (a website whose liberal leanings are pretty obvious) about tribal epistemology, which is a fancy way of describing the echo chamber problem. Alexander’s summation of the Vox article is so great I have to quote it:

…there used to be a relatively fair media in which both liberals and conservatives got their say. But Republicans didn’t like having to deal with facts, so they formed their own alternative media – FOX and Rush Limbaugh and everyone in that sphere – where only conservatives would have a say and their fake facts would never get challenged.

Or: everyone used to trust academia as a shared and impartial arbitrator of truth. But conservatives didn’t like the stuff it found – whether about global warming or trickle-down economics or whatever – so they seceded into their own world of alternative facts where some weird physicist presents his case that global warming is a lie, or a Breitbart journalist is considered an expert on how cultural Marxism explains everything about post-WWII American history.

As hilarious as I find this description, it’s also an accurate representation not only of the article, but of the viewpoint that many on the left have about where things stand at the moment. But there are several problems with this representation. First, though it’s beyond the scope of this post, I don’t think liberals have nearly the monopoly on truth that they claim. Second, and most germane to our subject, if conservatives have fled en masse from media and academia, isn’t retreating from the field a pretty good description of losing? Finally, it implies that this is a recent split, that everything was going along fine when suddenly, right around the election of Trump, the conservatives went crazy and unilaterally blew the whole system up because they hate the truth. Leading to a broken system where liberals continue to be on the side of facts and justice and conservatives have turned into rabid barbarians.

Alexander takes particular aim at this last point, and mentions that the original article (the one he’s commenting on):

…devotes four sentences in his six thousand word article to the possibility that conservatives might be motivated by something deeper than a simple hatred of facts.

Alexander points out, I believe correctly, that reducing the recent conservative split down to just a “hatred of facts” leaves out all manner of context. Which is to say it blatantly misrepresents what has happened. The four sentences Alexander call out, end with the statement:

But the right has not sought greater fairness in mainstream institutions; it has defected to create its own.

Both Alexander and I remember the last several decades a lot differently, but Alexander says it better so I’ll use another quote from him:

This is a bizarre claim, given the existence of groups like Accuracy In Media, Media Research Center, Newsbusters, Heterodox Academy, et cetera which are all about the right seeking greater fairness in mainstream institutions, some of which are almost fifty years old. Really “it’s too bad conservatives never complained about liberal bias in academia or the mainstream media” seems kind of like the opposite of how I remember the late 20th and early 21st centuries.

The way I remember it, conservatives spent about thirty years alternately pleading, demanding, suing, legislating, and literally praying for greater fairness in mainstream institutions, and it was basically all just hitting their heads against a brick wall. Then they defected to create their own.

If you agree with this narrative (and it certainly matches my experience) then we can take three things from it. First it bolsters the idea that the conservatives are losing, second that they have been losing for a lot longer than just since November, in both media and academia, and finally that we have ended up with a media civil war that bears many similarities to the actual Civil War. Another situation where people attempted for decades to keep things together but finally, when it became apparent that was impossible, that’s when hostilities finally break out. Though, hostilities this time around are not anywhere near the level of the actual Civil War and it might be more appropriate to call this a “cold civil war.”

Of course, I am by no means, the first person to talk about an increasingly divided country, or of a national divorce or even the first person to compare it to a new civil war. But I think most of these people are looking at it from a very short time horizon, while I think the key insight in this whole thing, the insight which Alexander brings to the table is that this has been going on for decades, and what we’re seeing recently is people giving up on trying to solve the problem via compromise. Just as, with the election of Lincoln, it became apparent to the South that it would no longer be possible to maintain slavery via the federal government.

Taken all together what this means is that the chasm which is opening up in society is not some recent development, some short-lived mass hysteria brought on by the election of Trump, rather it’s something that has been going on for a very long time and rather than current events being a temporary detour, they more likely represent a metamorphosis into a new and frightening reality, which may bear more resemblance to 1860 than to 1968.

Looking at all of this you may dismiss my conclusions. Perhaps you don’t think conservatives are losing, or you think the division is a temporary bump in the road, not some new and frightening change to the country’s politics. If so I would urge you to stay tuned, because I definitely intend to return to this subject and cover areas beyond the Supreme Court and the media and perhaps delving into these other areas will change your mind. But that aside, for the moment, I would ask you to assume that I am correct, to assume that the conservatives are losing and that they’ve been losing for a long time. If this is the case, what are the potential outcomes?

The first possible outcome is that, just like the South during the Civil War, the conservatives could be routed, their institutions could be laid waste and the things they feel deeply about could be made illegal. (It should be pointed out here that the process of making things legal they deeply oppose has already begun.) And there would be many who would cheer this outcome, and if you believe that the signature conservative positions of today are as bad as slavery was then, you probably should cheer this outcome. (You also might be deluded.) But if you can imagine this outcome from the position of the victors, can you also imagine it from the position of the vanquished? And if so do you imagine that they’re going to surrender quietly? It could be argued (and this is one more thing which I intend to cover in more depth when I return to this subject) that conservatives have been surrendering for decades and it hasn’t gotten them anything. And that the rise of the alt-right and the election of Trump and all of the other associated phenomenon have come about because conservatives are tired of surrendering, particularly when it brings no benefit. In any event this outcome flows from the methodology of war, and as I have said in the past, it’s unlikely to be as quick and as painless as you imagine, even if you happen to be on the winning side and even if you keep the violence to a minimum, which is by no means certain.

That is, broadly, what happens if the trend continues. On the other side we have the outcome if the trend reverses itself, things peak, and while, yes, the conservatives are losing, and have been losing for a long time, it slows down, and in a manner similar to what happened in the late 60’s/early 70’s, activism and protests and social unrest reach a crescendo and then subside. Just like Nixon, Trump will leave office and everyone will calm down a little bit. Fox News will mellow and become more like CNN. The polarization in congress will subside and we’ll once again have a bunch of moderates, who reach across the aisle to pass intelligent bipartisan legislation. Obviously, something like this, is the outcome I prefer, but it’s an outcome that requires a lot of understanding and a lot of wisdom. And as I describe it, it honestly doesn’t sound very likely.


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