The Washington PostDemocracy Dies in Darkness

Opinion Conservatives hope to turn back the cultural clock. Can they succeed?

Fences around the Supreme Court. (Jabin Botsford/The Washington Post)
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Paul Starr is a professor of sociology and public affairs at Princeton University, founding co-editor of the American Prospect, and a winner of the Pulitzer Prize for general nonfiction.

Retrofuturism is a term for imaginative works that envision a future out of the past. It seems an apt way to think about the future of American law and its relation to American culture. After long seeing their cultural influence decline, can conservatives use their control of the Supreme Court to impose their will and turn back the clock on decades of social and cultural change?

We have precedents for groups in decline using law to try to reverse social change. Consider two examples from a century ago: prohibition and immigration restriction, both driven by native-born Protestants who identified liquor and immigrants with disorder and immorality. Prohibition was a notorious failure, widely flouted and then repealed after only 14 years. But the immigration limits adopted in 1924 had a deep impact, cutting off new streams of immigrants until Congress changed the law in 1965.

Today’s conservatives feel similarly threatened by changes they identify with disorder and immorality, including new waves of immigration and shifts in gender relations and gender identity. But to succeed in turning back the cultural clock, they will need to escalate their crusade in several respects.

The first is enforcement. Enforcing antiabortion laws will require prosecuting, convicting and sentencing not just abortion providers but likely many women themselves, as well as anyone who assists them in obtaining abortion services or abortifacients. Success in enforcement will determine whether the prohibition of abortion is widely flouted, stirs opposition, and soon becomes another example of a failed effort to legislate morality — or instead lasts for decades.

The second line of escalation involves the scope of issues conservatives take on. In his concurring opinion in Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas invited challenges to precedents guaranteeing constitutional rights to contraception, same-sex sexual intimacy and same-sex marriage.

A third line has to do with the level at which conservatives pursue change. The lowest level authorizes private secession from public norms. This is what the court has done by ruling, on grounds of religious liberty, that conservative businesses or other institutions cannot be required to serve LGBTQ people or to cover contraceptives in their health-insurance plans.

One step up from these private opt-outs is devolution to the states, the current outcome on abortion, which is similar to the era of Jim Crow in that it allows states to maintain a distinctive way of life to the detriment of the socially subordinate. Sending an issue back to the states is often hailed as limiting the power of the federal government.

But many conservatives are not treating devolution as a matter of principle. As their support for a national ban on abortion indicates, they would like nothing more than to use federal power to set national rules, not just through legislation but, if possible, through an amendment to constitutionalize fetal personhood. The court’s recent decision on guns extended federal power, barring states from setting their preferred gun regulations.

Whether conservatives can use their dominance of the court and red states to redirect American culture ultimately comes down to this: At what point along these paths of escalation will their counterrevolution come to rest or unravel? Each step up raises the political risks.

In its decisions on abortion and guns, the court showed no hesitation in defying public opinion, but carrying out the full counterrevolution will test the power of a conservative legal regime. The share of Americans self-identifying as Christian, according to Pew Research Center, has fallen to a new low of 63 percent, while 29 percent identify with no religion. The long-term trends indicate rising acceptance of LGBTQ people; approval of same-sex marriage, according to Gallup, has risen from 27 percent in 1996 to 71 percent today. And, also according to Gallup, an increasing proportion of Americans self-identify as LGBTQ, rising to 7.1 percent overall and 20.8 percent among Generation Z.

If it were true, as some like to say, that “politics is downstream of culture,” the case of Court v. Culture would be settled. But politics is also “upstream” of culture. To say that a right is the law of the land, and especially that it is rooted in the Constitution, has been a powerful argument.

When liberals won legal decisions upholding the separation of church and state and secured civil rights for racial minorities, women and LGBTQ people, they were using the law for cultural and social purposes. Indeed, marginalized groups supported by liberals won rights in court that they could not win in Congress. That situation was intrinsically unstable, as has long been apparent. But legal validation reinforced trends already in progress and gave newly won rights an aura of permanence.

In the unfolding battle, both sides face arduous tasks. Liberals have to win rights in the political arena that they were unable to win that way in the first place. Conservatives have to escalate their crusade in ways that will stir opposition and likely create division in their own ranks.

The court could have been a moderate, stabilizing force in a dangerously polarized society, but its conservative majority has chosen a different course. As the justices and red-state leaders go up the ladder of escalation, they will raise the stakes and risk feeding a backlash, undermining the authority of the court itself. To control the future, conservatives would have to moderate their ambitions. I’m not betting that they will.

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