Try to forget what side of the argument you are on for a moment. That's what Althouse does. She tries to consider only the dynamics of the argument.
She opens her analysis with three sentences that I'm not sure I understand. Individually, I understand them well enough. It's what they do together that puzzles me.
Here is the first:
There is this idea in constitutional law that you need to pick one approach to interpretation and use it consistently, across all the issues, and that's what keeps you deciding cases according to law and not policy preferences."There is this idea," I take to mean, there is a position that some people argue and it goes like this. By phrasing it that way, I think Althouse is signalling that this is not her position. I now expect her to take a critical position in the next sentence, which is as follows:
An argument can sound completely cogent, but if it's not the kind of argument you always make, it's a lawyer's argument, not a judge's reasoning.And that is followed by this key argument:
Of course "the left" are political actors, entitled to make their lawyer's arguments, and they may not be embarrassed to find themselves switching approaches to constitutional law to use whatever works best to get the outcome they want.So systemic racism just a lawyer's argument. Ponder that.
The phrase "they may not be embarrassed" is concealing a lot here. Let's try to spell out what is being concealed.
Lawyers argue on behalf of clients. They don't have ends of their own beyond representing their client as well as best they can. Philosophically speaking, this is a Weberian universe where reason is used to decide means and not the choice of ends. A certain kind of liberalism follows from that: a liberalism that, as Ronald Dworkin, insists the state not take a position as to what constitutes the good life. The state will take a position about actions of individuals that might impinge on the right of individuals to pursue the good life as they see fit.
Okay, now let us consider systemic racism. A systemic position that affects actual, living people is then racist. This remains true even if none of the individuals involve are conscious of acting with racist motives or conscious of being acted upon in a racist manner. The left accepts that as a legitimate argument. Why wouldn't they accept it with regards to abortion?
One possibility, and it's the one Althouse suggests, is that they just don't care whether they are being consistent. They just want what they want. The problem here is that this suggests they don't actually have an argument for what they want, that the political ends they choose are merely tribal. And maybe they are.
But circle back to racism for a moment. The left's insistence on eliminating systemic racism has always been that this is an end worth pursuing. They typically do not admit to be using this as a strategy to achieve other ends. The implication of Althouse's argument is that this is what they are indeed doing. And if that is true it is also reasonable to infer from their response to Clarence Thomas that they do not particularly care about system racism. They only care about these other ends; ends that are, not incidentally, unstated.