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>> 151 6 The Supreme Court in the Future Most commentators would agree that five of the current Supreme Court justices are conservatives, but many of those same commentators would quarrel with my characterization of four of those justices—Scalia, Thomas, Roberts, and Alito—as neoconservatives. Yet, if neoconservatism, as I define it, is compared with the other leading contemporary forms of conservatism , traditionalism and libertarianism, one discovers that neoconservatism best fits the corpus of the Court’s decisions and opinions over approximately the previous two decades. Confusion arises partly because neoconservatism overlaps with traditionalism and libertarianism. The predominant neoconservative themes, derived from the critique of pluralist democracy and concomitant advocacy for republican democracy, are twofold : first, an insistence on and drive for moral clarity; and second, a skepticism toward governmental social engineering programs (particularly of 152 > 153 as neoconservative. Indeed, this ambiguity—the loose use of the term neoconservatism—prompted the first goal of this book: to present a narrative history of neoconservatism that would illuminate its purposes and policies. To do so, I primarily went to the origins. I sought to uncover the themes that early neocons—Kristol, Daniel Bell, Norman Podhoretz, and their ilk—developed. With regard to foreign policy, I followed developments from Cold War neoconservatives to the next generation, such as William Kristol. Most important, by closely attending to the neoconservative texts, I was able to depict a coherent intellectual and political movement . It is that coherent movement—neoconservatism—that I then used to achieve the second goal of the book: to explain how neoconservatism influenced or was manifested in Supreme Court constitutional adjudication . Undoubtedly, some readers will react, “But what about so-and-so? Isn’t he or she a neocon?” Or, “What about such-and-such Bush II policy? Isn’t that neoconservative?” I have two reactions to such criticisms. First, I do not claim that my definition of neoconservatism is the only reasonable one. Rather, I claim that my definition is valid—based on the neoconservative texts themselves—and illuminating, especially when used to analyze Supreme Court cases. Second, I caution against defining neoconservatism too capaciously. If too many people and too many principles and policies are brought within the circle of neoconservatism, then the term loses its significance. Neoconservatism becomes synonymous with conservatism. In any event, despite the movement’s many successes, the neoconservative agenda has not been completely fulfilled in any constitutional realm. Establishment Clause jurisprudence is typical. Neoconservative justices have strongly influenced case outcomes: Over the past twenty-five years, the Court’s decisions have consistently bolstered governmental and private efforts to promote traditional American (and Christian) values. While the Court has not explicitly repudiated the wall metaphor—the idea that a high wall separates church and state—case outcomes have corresponded increasingly with the nonpreferentialist position—the idea that government can support religion so long as it does not prefer one religion over another. Yet the Court has never expressly adopted nonpreferentialism. Moreover, as advocated by neocons, the justices will discuss originalist interpretations of the Establishment Clause, but a majority has never committed to following the original meaning and nothing else. Ultimately, those judicial opinions in which the most enthusiastic neoconservative 154 > 155 and that encouragement of religion was the best way to foster morality.” The Establishment Clause thus should not prevent the government from continuing to acknowledge “the contribution that religion has made to our Nation’s legal and governmental heritage.” Consequently, Scalia repudiated the Lemon test and the wall metaphor, which required “neutrality between religion and irreligion,” and advocated instead for nonpreferentialism. But it bears emphasis that Scalia wrote only a dissenting opinion in McCreary, though the conservatives managed to carry the day in Van Orden. Plus, Scalia could not hold Kennedy for all of his dissent. Kennedy refused to join the part that most strongly asserted a neoconservative vantage: that because the Establishment Clause allows the government to recognize and support religion in general, the clause inevitably allows government, in the United States, to recognize and support specifically monotheistic religions, particularly those that follow the Ten Commandments.3 Neocons Empowered Neoconservativism has strongly influenced Supreme Court decision making in Establishment Clause cases: Many case outcomes correspond with neoconservative views, and many opinions reveal neoconservative influences . Even so, the neocons have neither won every case nor carried majorities when most aggressively pronouncing their positions. And the same is true in other constitutional areas, whether congressional power, affirmative action, free expression, or elsewhere. But what about the future...

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