This has not gone the way Mark Tushnet thought.Ten years ago, when Tushnet, then a professor at Harvard Law School, sketched out a vision of a resurgent left-wing jurisprudence in a post on the legal affairs blog Balkinization, he was imagining a much different future. A better, brighter one.Hillary Clinton was on her way to the White House, and marching in the triumphal procession she’d lead to Washington was to be a phalanx of left-wing lawyers and academics. They were only awaiting their summons, a summons Tushnet prophesied would arrive in just a few months. After so long in exile, legal progressives were on the threshold of the promised land.
Canaan has never seemed further away. It was Donald Trump to whom voters granted the power to transform the judiciary, which he did by appointing three judges to the Supreme Court and hundreds more to the courts below it. The conservative legal movement’s decadeslong quest to push the courts to the right, which would have ended in ignominy and failure had Clinton won, culminated in triumph instead.
Whatever Tushnet foresaw a decade ago when he proclaimed the legal left’s deliverance at hand, what he and they got, to borrow his own words, was another forty years “wandering in the wilderness.” They knocked, but it was the legal right that was invited into paradise. Ever since, progressives have been divining ways to conquer Eden before their forty years are up, or, failing that, set it ablaze and burn it to the ground.
