Now that the moral revolutionaries are solidly in control, what is to be demanded of Christians who, on the basis of Christian conviction, cannot join the revolution? The demands have now been presented, and they represent unconditional surrender.
In a stunningly candid essay from May 2016, Harvard Law School professor Mark Tushnet declared a total liberal victory and chastised his fellow liberals for what he called a “defensive crouch liberal constitutionalism” that is now outdated. With liberals firmly in control of almost every power base in the culture—most importantly, the federal courts—there is no reason for liberals to play defense, he asserts.
Tushnet argued that liberal judges are now in the majority, and he expected that the Supreme Court, given the death of Justice Antonin Scalia, would be unlikely to reverse any liberal decisions handed down by lower courts. Federal judges, Tushnet argued, “no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions.”
Tushnet called for liberal constitutionalists at every level to compile “lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided.” He also calls for liberal judges to “exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling.” He lists some of the decisions he targets and then goes on to criticize even some of the most liberal judges and justices, including Justice Ruth Bader Ginsburg, for being too defensive and looking over their backs at conservative critics.
But in the most crucial section of his essay, Tushnet delivers the ultimatum to the losing side in the culture conflict, including evangelical Christians: “You lost, deal with it.” To his fellow revolutionaries Tushnet announces, “The culture wars are over; they lost, we won.”
Then he goes for the kill:
For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who—remember—defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown [v. Board of Education]. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.)
How to deal with the losers? Here we meet the reality of liberal judgment in a day of liberal ascendancy. Tushnet argues that conservatives should now be met with a hard line and a demand for total surrender—no accommodation whatsoever. Don’t even try to be nice to moral enemies, Tushnet commands, since their arguments have no normative authority of any kind.