The Intolerance of Being Unhappy When Extremists Succeed

There's an emergent line I'm seeing from the nationalist-conservative right, complaining about how, as their practical power increases, they and their ideas are no longer looked upon with the same degree of affability as when they were fringe activists chirping at the margins. Adam Mortara put it as follows after he and Jonathan Mitchell, architect of Texas' SB8 and some of the most radical anti-abortion pushes in the country, received an (allegedly) chilly reception by a liberal former mentor.*

“It was hurtful . . . and eye-opening,” Mortara said. “You’re fine when you’re just a yappy little dog that can’t bite. But, if you grow up to be a big dog that can actually do stuff, then you’re probably going to be put down.”

Justice Alito said something similar in his whine-terview in the Wall Street Journal last week -- he alleged that he's really no different than Antonin Scalia, but Scalia was tolerated by liberal elites because he was mostly in dissent. Now that Justice Alito commands a majority, things hit different.

"When you're in dissent," Justice Alito observes, "well, his ideas were amusing and interesting. He spoke at a lot of law schools and he was honored at law schools, but he wasn't a threat, because those views were not prevailing on issues that really hit home."

This line is presented as some sort of gotcha to the liberals. "Oh, you tolerated us when our ideas were basically just fascinating thought experiments, but now that we're winning it's dangerous." To which I say: yes! That's how it works! 

The whole point of liberal free speech commitments is that there is a sizeable gap between "views one is willing to consider and debate" and "views which it would be good, or even acceptable, to prevail in political life." We don't limit our consideration only to those positions which we're willing to endorse on-the-merits; which means that there is no conflict between engaging in such consideration in the abstract and being appalled when certain views actually start winning the day in "real" politics. The "gotcha" completely misunderstands the point of what liberal tolerance in the context of an abstract intellectual discussion is supposed to signify, or commit to.

For example, it is entirely plausible that one might assign, in a political theory class, works by Lenin, and consider/debate them in the classroom context. That's perfectly appropriate. But if the Leninists actually start seizing political power and instituting the purges, that would be bad! And if they said, "Oh, it was fine to debate our ideas in the classroom, but now that we're actually in charge and establishing gulags you have a problem with it," well, yeah, I do! Clearly! And I can think the same thing of compulsory pregnancy and forced childbirth. As a professor, it is important to debate these questions. But the actual political reality of it is catastrophic, and it's fine to say so.

It is not a failure of liberal tolerance to be unhappy when illiberal authoritarianism is on the march. A willingness to debate and consider these views as abstract intellectual exercises does not make said unhappiness hypocrisy. This isn't that complicated.

* Full disclosure: the mentor in question was David Strauss, who was my mentor in law school as well. I also got to know Mitchell when I was a law student, and can attest that he is a personally very pleasant person to interact with in addition to possessing a formidable intellect. Anyone who knows Professor Strauss is well aware of his commitment to nurturing and supporting law students from a range of different ideological backgrounds, and so I have no doubt he is genuine in feeling hurt that Mitchell has used his prodigious legal talents in service of dangerous, even lawless, public initiatives.