These Truths

by Jill Lepore

  The Cold War had lasted nearly half a century. It had been terrible and terrifying. It had lasted so long that it had been nearly impossible to imagine that it would ever end. And when it did, when communism began collapsing across the Soviet bloc, it began to look to many Americans as if Ronald Reagan, with a strong hand and an iron will, had saved the nation, and even the world.

  THE FALL OF COMMUNISM liberated Eastern Europe. It also unleashed an unregulated capitalism that would widen economic inequality, destabilize the world order, and eventually threaten America’s place in that order. There were precedents for changes on so epic a scale. Capitalism had been unregulated before, at the end of the nineteenth century, only to be subject to regulation once more during the Progressive Era and the New Deal. Empires and nations and ideologies had risen and fallen before, too, as during the Second World War, when a new order had emerged in its aftermath. But if Americans contemplating the consequences of the fall of communism and the end of the Cold War were wise to look to the past to anticipate the future, they were unable to imagine the revolution in information technology that would resist regulation and undermine efforts to establish a new political order.

  Reagan, having stockpiled his political capital, set about restructuring the judiciary. Originalism was one strategy for turning back decisions made by the liberal Warren Court. Another strategy was to replace liberal justices with conservative ones, beginning with lower court appointments. While campaigning, Reagan had pledged to appoint only “family values” judges. Liberals read this as coded language meaning “white and Christian.” Edwin Meese handled the selection of 369 district and appeals court judges, more than had been appointed by any other president. Of those 369 judges, only twenty-two were nonwhite. By the time Reagan left office, his appointees constituted nearly half of all judges on federal courts.103

  In 1982, Reagan appointed University of Chicago law professor Antonin Scalia to the DC Circuit Court; four years later, he named him to the Supreme Court. A member of the Federalist Society, Scalia, a father of nine, was also a devout Catholic. Scalia became the Supreme Court’s most learned and eloquent proponent of originalism. Between judges interpreting the Constitution and judges trying to figure out what the framers meant, he argued, originalism was plainly the lesser evil. “The purpose of constitutional guarantees . . . is precisely to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks fundamentally undesirable,” Scalia wrote.104

  Scalia joined the court in 1986, just after it issued a landmark 5–4 decision in Bowers v. Hardwick, refusing to overturn a ban on sodomy in Georgia. The gay rights movement had grown during the 1980s in the face of a public health crisis. AIDS as a disease was first identified in 1981; HIV was isolated in 1984. By 1989, the CDC confirmed that AIDS had infected 82,764 Americans and killed 46,344 and estimated that ten times as many cases of infection had not yet been reported. Three out of four cases in the 1980s were gay men. As some leaders of the Christian Coalition called the disease God’s vengeance—Pat Buchanan said “nature is exacting an awful retribution”—Reagan kept silent: he didn’t speak publicly about AIDS until 1985, when he responded to a question about the disease at a press conference. And still the federal government offered scant support for research and public health services.105

  Bowers had been part of a legal campaign to decriminalize homosexuality by building on the right to privacy established in the chain of cases that began with Griswold v. Connecticut. The court rejected this argument: “No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated”; therefore, the case turned not on a right to privacy but on the claim of a “fundamental right to engage in homosexual sodomy,” which, the court determined, did not exist. (Justice Lewis Powell, who joined the majority, said to one of his clerks at the time, “I don’t believe I’ve ever met a homosexual.” Unknown to Powell, that clerk, as well as several of Powell’s earlier clerks, was a closeted gay man.) Justice Harry Blackmun, dissenting, argued that the case did indeed turn on a right to privacy: “If that right means anything, it means that, before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is an ‘abominable crime not fit to be named among Christians.’”106

  Liberal legal scholars and jurists had long been frustrated with the right to privacy as a constitutional argument with which to understand rights having to do with women, sexuality, and the family. In Griswold, Roe, and Bowers, amicus briefs submitted on behalf of the plaintiffs by organizations that included the ACLU, Planned Parenthood, and the Lambda Legal Defense and Education Fund made arguments based on equality that the court simply ignored, instead choosing to base its opinion in these cases on privacy.107 After the deadline for ratifying the ERA expired in 1982, it appeared that women and gay men would be granted not equality but, at best, privacy. “A right to privacy looks like an injury got up as a gift,” the controversial feminist legal theorist Catharine MacKinnon argued in 1983. In 1985, Ruth Bader Ginsburg, then on the U.S. Court of Appeals in DC, regretted that the Supreme Court had “treated reproductive autonomy under a substantive due process/personal autonomy headline not expressly linked to discrimination against women.” Ginsburg found the court’s opinion in Roe wanting for a number of reasons, but among them was its failure to pay any attention at all to discrimination against women, or to a woman’s “ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.”108

  Privacy arguments, long troubling to feminists, were especially troubling to gay rights activists, who, especially given the Reagan administration’s seeming indifference to the staggering suffering endured during the AIDS crisis, insisted on the importance and the urgency of visibility, of pride, and of coming out. “Silence=Death” was the slogan of ACT UP, the AIDS Coalition to Unleash Power, which protested in Washington in 1987. The gay rights movement, facing the pro-family rhetoric of the right and observing the limits of the right to privacy in reproductive rights cases, changed course. During the 1990s, privacy remained the watchword of the reproductive rights movement—and abortion became more hidden, and more difficult to procure—while equality became the watchword of the gay rights movement, especially after the antidiscrimination fight to overturn antisodomy laws turned into an equal-rights fight for same-sex marriage.109

  Each of these battles over sex and reproduction cast light on a disagreement on the Supreme Court over the place of historical analysis in constitutional interpretation. In Bowers, Justice Byron White, writing for the majority, argued that the right to engage in homosexual sex was not rooted in tradition; instead, prohibitions on homosexual sex were rooted in tradition; these prohibitions, he said, have “ancient roots.” “I cannot say that conduct condemned for hundreds of years has now become a fundamental right,” Justice Powell wrote in a concurring opinion. Justice Blackmun argued against this use of history: “I cannot agree that either the length of time a majority has held its convictions or the passions with which it defends them can withdraw legislation from this court’s scrutiny.”110

  ACT UP demonstrators protested outside New York’s city hall in 1988. The place of originalism in American jurisprudence reached the attention of the public in 1987, during the bicentennial of the constitutional convention and the explosive debate over the nomination of Robert Bork. That May, Justice Thurgood Marshall, the distinguished elder statesman of the civil rights movement, gave a speech in which he suggested that the celebration of the bicentennial “invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the ‘more perfect Union’ it is said we now enjoy.” Marshall, who had spent the first half of his career fighting against Plessy v. Ferguson, raised a sharp eyebrow at the then-popular dewy nostalgia for the 1787 Constitution and the pieties of originalists.

>   “I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention,” Marshall said, with as firm a conviction as he had argued before the court in Brown v. Board. “Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start.”111

  Weeks after Marshall’s cry of dissent, Reagan nominated Bork to the bench. The best-known conservative legal theorist in the nation, he had been promised a seat by Nixon after the Saturday Night Massacre. His nomination had been strongly supported by the Federalist Society. Bork had a singularly narrow view of constitutional interpretation. No fundamental rights exist outside of those listed in the Constitution, he argued. “Original intent is the only legitimate basis for constitutional decision,” he’d written. And, although as late as 1989, Bork would argue that the Second Amendment works “to guarantee the right of states to form militia, not for individuals to bear arms,” he did not believe that the right to privacy established in Griswold existed and instead believed that privacy had become “an unstructured source of judicial power.”112

  Before Bork, Supreme Court nominations had been all but automatically and often unanimously approved by the Senate Judiciary Committee. The bipartisanship and deference to the separation of powers that such approval represented ended with Bork. Less than an hour after Reagan announced his nominee, Massachusetts senator Edward Kennedy delivered a speech in the Senate in which he declared, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”113

  Apocalyptic rhetoric had pervaded American politics from the start. After all, supporters of John Adams had warned that to elect Thomas Jefferson would be to live in a world without God. But with Bork’s nomination, the language of the end-of-days came to the courts, as if justice itself had become a kind of dystopia.

  Not all of the campaign against Bork was as full-throated as Kennedy’s speech. Gregory Peck, best known for his portrayal of an anti-lynching lawyer in To Kill a Mockingbird, provided the narration for a temperate television ad that alerted Americans to Bork’s support for poll taxes and literacy tests and his opposition to the 1964 Civil Rights Act, and urged them to call their senators to ask them to oppose Bork’s nomination.114 Still, the extraordinary fact was that a judicial nomination had elicited paid political advertising at all. And the Senate Judiciary Committee hearings themselves, also aired on television, proved far from temperate.

  The televised Bork hearings offered Americans a sweeping survey of the nation’s history—and an argument over it. Bork, with a frizz of combed-over red-and-gray hair and a grizzled beard, parried with the senators on subjects ranging from free speech to women’s rights. He quoted Benjamin Franklin’s remarks from the closing day of the constitutional convention. He talked about and answered questions on black codes, the committee that drafted the Fourteenth Amendment, Plessy v. Ferguson, Brown v. Board, and Griswold v. Connecticut. (The Connecticut law banning contraception was “nutty,” Bork told the committee, but the court’s decision in Griswold was worse: “It comes out of nowhere and doesn’t have any rooting in the Constitution.”) He talked about the ERA and about Bowers, about originalism and liberalism. In the end, the Senate Judiciary Committee voted down his nomination, 58 to 42.115

  Five months after Bork’s nomination was rejected, he spoke at the annual meeting of the Federalist Society, where members of the audience wore buttons that read “Reappoint Bork.” To “bork” became a verb, meaning to destroy a judicial nomination through political campaigning. Ralph Reed of the Christian Coalition promised that conservatives would, one day, “Bork back.”116

  Battle lines between the Left and the Right had been inked on the very pages of the Constitution itself. The lines were new but the questions were old. They had been debated by every generation of Americans. Are women persons? Is separate equal? What is the role of the state in protecting its citizens against discrimination? Is discrimination based on race different from discrimination based on gender or sexuality? Are there limits to free speech?

  The Bork hearings and, more broadly, the realignment of the Supreme Court and the politicization of the nomination process marked a turn toward what, in the 1850s, William Seward had called an “irrepressible conflict.” Its importance was second only to the other lasting legacy of the Reagan era: Reagan’s role in bringing about the end of the Cold War. Tragically, the fall of communism, the defeat of an enemy abroad, would only gird Americans for the battle to come, with one another, at home.

  No single act so well captured the end of the Cold War as the dismantling of the Berlin Wall in 1989. In the last quarter of the twentieth century, rising global temperatures replaced the possibility of nuclear Armageddon as the chief threat to the planet. Climate change shaped U.S. foreign policy and its domestic agenda, too. But it also manifested itself as yet another kind of partisan division: conservatives rejected the science of climate change and added environmental science to the list of institutions—like the press and the courts—that could not be trusted because of their liberal bias.

  In June 1987, Reagan, visiting Berlin, demanded, “Mr. Gorbachev, open this gate! Mr. Gorbachev, tear down this wall!” Months later, the two leaders signed an agreement to destroy intermediate-and short-range missiles.117 The Berlin Wall, a once towering symbol of Soviet power and communist repression, fell in 1989, reduced to rubble. Gorbachev was forced out of office in 1991, but by then the Soviet empire had collapsed.

  By 1992, more than four decades after it began, the Cold War, unimaginably, was over. Missile by missile, the silos began to close, their caves abandoned. The skies cleared. And the oceans rose.

  III.

  BET WEEN THE END of the Cold War and the beginning of the global war on terror, Americans dragged themselves, bloody and bruised, from one political skirmish to the next. They fought over guns, abortion, religion, gay rights, and the environment. They fought in the schools, the courts, the press, and the university. They fought with words, and they fought over words. They fought by tooth and nail and by hook and by crook and they believed they were fighting for the meaning of America, but, really, they were fighting for raw political power.

  “One set of hatreds gives way to the next,” Arthur Schlesinger Jr. wrote, wearily. By no means were all Americans animated by ideology; in fact, not very many were. But those who thought ideologically exerted disproportionate influence over American political culture. In their terms, political opponents were no longer mere partisans, equally loyal to the United States; they were enemies of the state. Conservatives, having lost anticommunism as a unifying ideology, leaned more on another, closer to home: opposition to liberalism. “There is no ‘after the Cold War’ for me,” Irving Kristol announced in 1993. “So far from having ended, my cold war has increased in intensity, as sector after sector of American life has been ruthlessly corrupted by the liberal ethos.” Liberals engaged in a politics of grievance and contempt: anyone who disagreed with them was racist, sexist, classist, or homophobic—and stupid. On college campuses, they passed “hate speech” codes, banning speech that they deemed offensive. They would brook no dissent.118

  Everyone seemed to be fighting, somehow, over women, who could not be made to fit into the Constitution but could not be left out of it. Patrick Buchanan, Nixon’s former speechwriter, declared war. Buchanan had been fired by Ford but hired by Reagan as his director of communications. At the 1992 Republican National Convention, having lost the party’s nomination to George H. W. Bush, he used his endorsement of Bush to rally the party’s conservative wing by attacking the Democratic no
minee, Arkansas governor Bill Clinton, and his two-for-the-price-of-one wife, Hillary Rodham Clinton, who, campaigning for change, would become the focus of a deep and ugly public animus.119

  “This, my friends, this is radical feminism, the agenda that Clinton and Clinton would impose on America,” Buchanan said, waving antifeminism as a party flag: “abortion on demand, a litmus test for the Supreme Court, homosexual rights, discrimination against religious schools, women in combat units. That’s change, all right, but that’s not the kind of change America needs, it’s not the kind of change America wants, and it’s not the kind of change we can abide in a nation we still call ‘God’s country.’” The crowd chanted, “Go, Pat, go!”120

  To many on the right, Bill Clinton and Hillary Rodham Clinton represented the 1960s coming-of-age. Bork called them “the very personifications of the Sixties generation arrived at early middle age with its ideological baggage intact.”121 A backlash against feminism animated much of the Christian Right’s pro-family crusade, and Hillary Rodham Clinton proved an easy target. She would remain a target for decades, not only during the campaign and not only during her husband’s presidency but through her later career in the Senate, and as secretary of state, and during her own two bids for the presidency, and especially during her ill-fated campaign, in 2016, against Donald Trump.

  Hillary Rodham, an astute, uncompromising, and no-nonsense mid-westerner, was born in Chicago in 1947. She started out as a Republican. A precocious politician, Rodham canvassed for Nixon when she was thirteen. At seventeen, she was a “Goldwater Girl.” In 1965, she brought her copy of Goldwater’s Conscience of a Conservative to Wellesley, where she was elected president of the Young Republicans. As a Capitol Hill intern in 1968, Clinton attended the Republican National Convention in Miami, but her opposition to the war, along with her feminism, slowly drove her away from the GOP. Like many feminists, she began to drift away from the Republican Party when the party began to abandon its support of equal rights for women. In 1969, as president of her class at Wellesley, she became the first student invited to deliver a commencement address; her speech was featured in Life. In 1970, she spoke to the League of Women Voters on the occasion of its fiftieth anniversary, wearing a black armband, mourning the students shot by the National Guard at Kent State. The next year, she met Bill Clinton when they were both students at Yale Law School. After graduating, she moved to Washington, DC. She worked as a staffer for the special counsel that was preparing for the possibility of a Nixon impeachment. The next year, she married Clinton, and kept her name. (In 1982, in the interest of her husband’s political career, she began referring to herself as Hillary Rodham Clinton.)122