Both progressives and conservatives obsess about who is appointed to the Supreme Court, as if political ideology determines whether someone is a highly qualified judge. Or perhaps it is because they believe their preferred justices will produce a better set of public policies. In fact, the hope of remaking the Court to fit one’s ideology remains a mirage, always hovering just over the horizon. Here’s Janan Ganesh of the FT:
Whoever was “right”, the evidence that liberalism won continues to amass. Last week, the Supreme Court ruled to extend LGBT rights. It also frustrated President Donald Trump over the treatment of young undocumented migrants. And this is after the right’s Long March through the judiciary, masterminded by the Federalist Society and other campaign groups. Away from the recent cases, which dealt with statutes, the call for the strictest possible adherence to constitutional text has the romantic aura of all lost causes.
Ganesh’s essay is entitled “How conservatives lost the culture war”:
The failures do not end there. Take immigration. When conservatism hardened into a movement in the mid-20th century, 5 per cent of the US population was foreign-born. Now the level is near an all-time high at 14 per cent. Or take the status of gay people. Public opinion on same-sex marriage has flipped from two-to-one against to two-to-one in favour since the millennium.
President Trump recently put a hold on H1-b immigration, but given polling data (increasingly favoring immigration) I expect a surge in immigration in the future, perhaps as soon as 2021. That’s partly because the pause in high-skilled immigration is like shooting ourselves in the foot, while “Making Canada Great Again“:
Mr Trump’s decision to extend a ban on permanent US residency applications and stop issuing other work permits such as H-1B visas has transformed Canada’s ability to compete for scarce talent, said technology and consulting executives who are among the biggest users of such visas.
“This may be a Canadian Jobs Creation Act. You can go to Toronto and hire people there and work quite effectively,” Cisco chief executive Chuck Robbins told the Financial Times this week. . . .
Rich Lesser, chief executive of Boston Consulting Group, told the FT that his firm had already offered jobs to several candidates who would be affected by the new H-1B and L1 visa rules. Instead of rescinding those offers, “by necessity we will move them to other countries, probably Canada”.
The US risked suffering “a migration of top talent” which would otherwise have been paying American taxes, he warned, dismissing the administration’s argument that the measures would speed the recovery of the US economy.
A CBRE study last year found that Toronto was North America’s fastest-growing market for tech jobs and its third largest after the San Francisco Bay Area and Seattle. . . .
“Interest has exploded,” said Irfhan Rawji, who founded a company called MobSquad 18 months ago to help American start-ups place tech workers rejected by the US immigration process in Canada.
Note that Toronto was already booming before the recent US moves to limit immigration.
READER COMMENTS
Mark Z
Jun 28 2020 at 5:49pm
This assumes that the justices‘ decisions aren’t based on juristic principle but rather merely “behaving as the wind behaves.” Which may be the case – it’s precisely the conservative objection to recent decisions – but I wouldn’t take it for granted that they aren’t making decisions based on sincere, long held legal positions.
Thomas Hutcheson
Jun 28 2020 at 6:23pm
Someday someone will figure out how the Republican party became the enemy of economic growth, favoring restrictions on immigration and trade (although that is just a return to ear;y 20th Century positions) but also increasing the structural deficit.
Keenan
Jun 29 2020 at 8:16am
This seems the same as the Fed: you can’t be a “republican” or “democrat” Fed official, if you’re competent.
There is the possibility of incompetent, partisan judges/fed officials though. We’ve seen it with Judy Shelton almost getting to the Fed, and more extremely with Moore and Cain.
I don’t know the Supreme Court confirmation process as well as Fed, but it seems substantially more difficult to get through?
Michael
Jun 29 2020 at 12:32pm
It might be more acurate to say that John Roberts is a follower, not a leader, but only on issues where there is a strong public opinion. Although that formulation is a bit too narrow because Gorsuch. But I don’t think Clarence Thomas, Sam Alito, RBG, and Sonia Sotomayor are followers. The others are maybe unreliable followers.
The character of the court will change dramatically if Trump is reelected, including on kleader vs follower on issues of interest to the general public.
Scott Sumner
Jun 29 2020 at 1:44pm
I’ve been hearing that prediction my entire life. I’m very skeptical that the Supreme Court will ever be much of a leader.
Steve
Jun 29 2020 at 2:35pm
“the call for the strictest possible adherence to constitutional text has the romantic aura of all lost causes”
We’ve now seen with Bostock how a strict textual interpretation does not always lead to a conservative victory. Just because it was a tool historically used by the likes of Scalia, Alito, etc. doesn’t mean it will always lead to the same outcome.
In some ways, it seems textualism is more prone to morphing the law as time passes, since words in 2020 have different colloquial meanings than they did in the 1950’s or earlier.
Michael Pettengill
Jun 30 2020 at 3:39am
What is changing is the understanding of person.
Two hundred years ago, a person was a rich white man leading the public to believe he’s a Christian, not Catholic, especially if slave owner.
Then Jackson, a slaveowner, led a populist movement that defined any white man as a person who should strive to own slaves on land government gave them by taking from heathen savages.
Then slaves became persons if men.
Then women gained status as persons.
Now everyone is person, queers, corporations, persons not born but frozen in liquid nitrogen.
The only thing with human DNA that isn’t a person, yet, is cancer cells, eg HeLa cells, the immortal Henrietta Lax.
Trying to revoke personhood and return them to chattel property or abominations is a slippery slope, because you could be the next to cease being a person with liberty, free of government control, or the control of old white men claiming divine right, eg catholic clergy.
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