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Glenn Harlan Reynolds divides Americans into two groups – Front-Row Kids and Back-Row Kids – for his short new book, “The Judiciary’s Class War” (Encounter Broadsides).

Reynolds, the libertarian University of Tennessee law professor behind the Instapundit blog, describes Front-Row Kids as “mobile, global, and well educated.” They are, in short, the urban elites who voted for Hillary Clinton.

The Back-Row Kids tend live near to where they were born, are less educated and put faith and traditional values at the center of their lives. They are the non-elites that voted for Donald Trump.

The Front-Row Kids hold most of the power in modern America but, Reynolds suggests, they are not as smart as they think they are; they delude themselves thinking their actions are inspired by concerns for the greater good when really they are acting in their own narrow class interests.

In this excerpt from “The Judiciary’s Class War,” Reynolds argues that a series of decisions made by the Supreme Court – whose Justices are exemplars of the modern elite – only seem to serve the Back-Row while actually benefitting the Front.

 

Many moderns might think of Brown v. Board of Education, which ended school segregation, as a Front Row decision, but although the Front Row came to endorse the Brown decision, and even to define itself by its opposition to racial discrimination, at the time of the decision the Front Row was deeply divided on the issue, as were members of the black civil rights community itself. Many of them feared that Thurgood Marshall’s civil rights litigators were getting ahead of themselves and risked a devastating defeat in the Supreme Court, or a destructive political backlash.

 History is written by the winners, though, and Brown is now lionized even though its actual impact on improving education, or even integration, for African-American children has been a disappointment. Part of the reason that Brown did not truly end segregation in schools came from the way it was implemented: Front-Row Kids loved its unabashed proclamation of equality; Back-Row Kids were less thrilled to bear the burden of its implementation.

When it came to implementing Brown, it was the Back Row who mostly paid the price. Private schools, and wealthy suburbs with their own school systems, were largely exempted from the trauma of forced busing, while working-class neighborhoods received much less favorable treatment even as their betters preened, a fact that was not lost on those neighborhoods’ inhabitants. This experience led to the alienation of many working-class citizens from the Democratic Party (despite Jimmy Carter’s endorsement of their neighborhoods’ “ethnic purity”) and the rise of the so-called “Reagan Democrat” blue-collar voting bloc.

In the controversial case of Allen v. Wright, the Supreme Court even struck down (on highly dubious “standing” grounds) efforts to get the IRS to enforce existing laws denying tax exemptions to private schools that engaged in racial discrimination. The effect was to allow better-off kids to escape schools that were being desegregated, while leaving behind minorities and working-class whites, thus vindicating Front Row principles and leaving the Back Row with the consequences.

Expanded freedoms in the sexual arena also mostly served the Front Row agenda. In Griswold v. Connecticut, the Supreme Court struck down a Connecticut law banning sales of birth control drugs or devices to everyone, even married couples, leavening its decision with some talk about the “sacred precincts of the marital bedroom.” But within just a few years, the Court, in Eisenstadt v. Baird, decided that the right to use birth control should not be relegated to “marital privacy” after all, but rather should be expanded to include the right of “the individual, married or single” to choose whether or not to have sex and to bear and beget children. Later, in Carey v. Population Services International, the Court extended this freedom to minors as well.

The Back Row was now just as free as the Front Row to use birth control, and did, but the real impact of this Court-induced change was to make it easier for the daughters of the Front Row to delay marriage while pursuing extended educations and careers. It was possible to remain single, and even to have sex, while pursuing college or a postgraduate degree before the Griswold decision and its progeny, but it was a lot easier to do so afterward.

And these things became easier still once Roe v. Wade established the principle that not only would birth control be available but that the right to terminate a pregnancy at any time in the first two trimesters would also be available as a backstop. Many of the arguments in favor of this decision were explicitly based on the way an unexpected child could derail a woman’s career plans, arguments that implicitly assumed that everyone had career plans of the sort that, in fact, were a staple of Front Row, not Back Row, lives.

It’s possible that the late-’70s/early-’80s “yuppie”—young urban professional— phenomenon of postponing raising children in favor of pursuing a career would have been less pronounced if these “reproductive rights” cases had not made extended dating and schooling, and delayed marriage, so much easier. (This extended schooling—and school-related dating—also facilitated a drastic increase in “assortative mating,” where there was a historically unprecedented level of marriage between members of the Front Row, concentrating income in two-earner professional households and further increasing the distance between the Back Row and the elite. Where once a Front Row boss might marry a Back Row secretary, now Front Row only married Front Row, and Back Row folks were on their own.”

Later cases involving gay rights, Lawrence v. Texas and especially the Obergefell same-sex marriage case, reflected Front Row priorities almost exclusively. There are, of course, plenty of working-class gays, but the gay marriage movement in particular was very much a Front Row priority. A New York Times article after Obergefell notes that the District of Columbia—a very Front Row place indeed—is very different than America at large:

These days, justices are more likely to work and socialize with openly gay people than most Americans are. That is partly because 10 percent of adults who live in the District of Columbia say they are gay, lesbian, bisexual or transgender, according to a February Gallup poll. That is a much higher percentage than in any state. Law schools and the legal profession have, moreover, been particularly welcoming to gays and lesbians.

Even in decisions that would seem to favor the Back Row, it often turns out that the Front Row is the real beneficiary. In the famous case of Goldberg v. Kelly, for example, the Supreme Court found that welfare recipients whom the welfare agency determined were ineligible enjoyed a constitutional right to a hearing before their benefits could be terminated. (Previously, they had the right to a hearing, but only the right to reinstate benefits after termination, with back pay, if it was found the termination was wrong.)

When I attended Yale Law School, Goldberg v. Kelly was still considered one of the great accomplishments of the Supreme Court, praised in pretty much every class I took—even my Admiralty class. (Yes, really.) But who does the ruling actually help? Well, unless—as seems doubtful—taxpayers are willing to send more money to welfare agencies in order to pay for hearings, the likely impact is that the same total amount of money will be appropriated, but now some not-insignificant portion of it will go not to provide benefits for poor people but rather to pay for the lawyers, social workers, clerks, and others needed for additional due process hearings. The net effect is that money that used to go to poor people is now going to people with jobs and credentials: the Front Row. …

In media law, too, the Front Row has received judicial support. The pivotal libel case of New York Times v. Sullivan held that public officials—later broadened to “public figures” of any kind—could not win a libel case without showing “actual malice” on the part of the defendant. (“Actual malice” doesn’t actually mean malice, but rather knowledge that the published statement was false, or issued in reckless disregard as to whether it was false or not.) The result of these decisions was, in effect, a subsidy to media companies, whose libel risks (and insurance premiums) were drastically reduced. It also meant that juries, the only Back Row institution in the judicial system, had far less power in libel cases. Perhaps coincidentally (but perhaps not), trust in the press has fallen steadily since the Sullivan ruling freed media organizations from previously existing legal accountability.

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