Courts should seek doctrinal principles that bear even-handed application across different contexts with differing ideological implications.
As soon as the votes were counted, some progressives explained that racism was the reason that the blue surge was not a tidal wave. Journalist Charles Pierce tweeted that he would be very concerned if the margin by which Gillum, the African-American candidate for Florida’s Governor, lost to Ron DeSanctis was larger than that by which Nelson, the white candidate for Florida’s Senator, lost to Scott. Others made more blanket accusations as when a prominent law professor tweeted that the limitations of progressive victories were due to racism. He got retweets in support. There is a strong echo in this latter remark of Clinton’s condemnation of half Trump’s supporters as “deplorables.”
These are frustrating remarks and reflect that bubble in which our elite media and academics live. Begin with the more precise remark. There were important other differences between Gillum and Nelson besides their race. Nelson was an incumbent, while Gillum was running for an open seat. Gillum was harmed by charges of corruption. Most important of all, Nelson was a moderate Democrat, Gillum a left-winger. Progressives emphasized the latter point until Gillum appeared to have lost. At that point, for many, race took over as the primary explanation for his loss.
The more general complaint is more difficult to address because it is much more diffuse. But there are obvious differences in the places which stayed red that do not require resort to racial attitudes for explanation. The South and the portions of the Midwest where Republicans did relatively well are more rural than the coastal states and thus much supportive of Second Amendment rights which they might believe are threatened by Democratic victories.
Even more importantly, these areas contain more churchgoers, and specifically, far more evangelicals than do the coasts. The Democratic Party appears more threatening than ever to the values many evangelicals hold. Democrats have made it clear that there is no place for pro-life activism in their party. If one believes that Roe is a license for mass murder and is now beyond criticism in a party, it becomes a moral duty to vote against that party’s candidates. And in the oral argument in Obergefell, Obama’s Solicitor General suggested that institutions that did not embrace same-sex marriage might lose tax their deductions. More generally, why would many devout religious Christians not worry that the Democratic Party might make it more difficult for them to follow their conscience on matters of morals?
The ideological and secular bubble inhabited by the elites in the media and the academy may blind them to such explanations. As my colleague Jim Lindgren has noted, evangelicals are dramatically unrepresented in American law schools and presumably at elite universities generally. And from personal experience, I can attest that while libertarians are a vocal, albeit small, minority, social conservatives of the religious or non-religious variety are virtually absent from legal academic discourse. Living among elite academics makes it hard to imagine voters who are sincerely motivated by social and religious values.
On the other hand, the academic world is one of the more race- and ethnicity-obsessed places in America. As the lawsuit against Harvard shows, elite institutions use different standards of admissions for different racial and ethnic groups, including more demanding requirements for Asians. No institutional value is more touted today in higher education than diversity, and diversity in academia is mostly defined by three characteristics—race, ethnicity, and gender. While I have reservations about some of these academic policies, I do not attribute them to racism, but to more complex differences in worldviews and predictions of social consequences. I wish many of our elite academics and media would extend the same kind of charity to their fellow citizens.