Samuel Bagenstos’s comprehensive overview in The American Prospect is the best single article I have yet encountered on the disturbing changes that await the Civil Rights Division of the Department of Justice once Attorney General Jeff Sessions takes the helm next year. With devastating cumulative effect, Bagenstos (formerly the number two official at the Division) proceeds from issue to issue—personnel, voting rights, police misconduct, education, LGBT rights, and more—and shows how the efforts of the Obama Administration will be tossed aside by successors who either reject these priorities or take a perversely warped view of them (the Trump DOJ, says Bagenstos, will probably ease up on prosecution of hate crimes, unless they can make cases out of the of black-on-white crimes that occasionally obsess right-wing media). “The election of President Trump,” Bagenstos concludes, “will massively set back civil-rights enforcement for years to come.”
The changes in store for civil rights enforcement in this country are a good illustration of the dangerous asymmetries that accompany presidential elections. It was all too easy to frame the 2016 choice in terms of the personal virtues of the two candidates (and even easier to misleadingly equate those candidates). But as Bagenstos’s article shows, this is disastrously misleading. New presidents bring along thousands of their closest friends to staff a new administration, and Republicans have made it their mission to systematically attack or undermine major federal statutes (like the Voting Rights Act, the Affordable Care Act, and the Dodd-Frank Act) in a way that really has no comparable analogue for Democrats. In other words, motivated Republicans appointed to these positions have more ability to tear down what they dislike than would similarly motivated Democrats.
Bagenstos suggests another problem linked to an asymmetrical penchant for undermining various pieces of legislation: the longstanding conservative effort to close off the means by which private individuals can guarantee their rights. If Trump’s Department of Justice declines to act against police departments that demonstrate a “pattern and practice” of violating rights, individual citizens have no recourse: Thanks to the Supreme Court, “private litigants are in no position to bring pattern-and-practice cases of this type.” And that’s part of a pattern of conservative jurisprudence limiting private remedies to public misconduct, from civil rights to antitrust. Rulings in recent decades have denied standing to groups seeking to sue over environmental harm. They have sharply curtailed class action litigation. They have made it basically impossible to curtail prosecutors whose incompetence leads to wrongful murder convictions (including denying damages to one man who wrongfully spent 14 years on death row). And they have limited the ability of private actors to seek changes to police procedures, ruling that a man who was subjected to a chokehold and sued for an injunction against the practice lacked standing because he couldn’t prove it would ever happen to him again.
Even critical coverage of appointees like Jeff Sessions might leave some voters with the impression that, however many posts are filled by officials with priorities other than enforcing the laws, individual citizens and mobilized groups can still pursue remedies. Yes, this is far less efficient: It’s better for the Department of Justice to intervene in dysfunctional police departments, for instance, than for individual citizens to pursue lawsuits against individual officers. But conservative jurisprudence over the last few decades has drastically narrowed even these second-best paths for action—what Erwin Chemerinsky has called “closing the courthouse doors.”
Soon, we will be living with the consequences. During the campaign, liberals argued heatedly over whether Trump should be portrayed as an anomalous figure far outside the political mainstream, or as the dangerous culmination of long-term trends in conservative politics. Insofar as that was a debate about how to construct an effective campaign message, it seems quaint in retrospect. But regardless of whether Trump himself is sui generis or the logical endpoint of long-term trends, his legal agenda as President will be strengthened by decades of conservative efforts whose consequences have not yet fully come into focus. Limiting private lawsuits is one thing when the Obama Administration serves as a backstop in enforcing federal rights, as Bagenstos documents. It is a very different thing when the backstop is replaced by an Attorney General whose racial politics were too regressive for 1986. We are now about to see just how effective those decades of work can be.