Something has to give. With each passing day, it grows clearer that the conservative legal movement—the network of lawyers, judges, and law professors centered around the Federalist Society and a series of conservative and/or Christian public interest law firms—is on a collision course with the “new right.” Only one side can win, and America should hope it’s the conservative legal movement.
In a nutshell, here’s what’s happening. The conservative legal movement is currently fighting a series of court battles, at all levels of the American courts, to weaken the ability of state actors to limit the liberty of government employees, government grantees, and participants in government programs.
The new right, by contrast, is vigorously proposing, supporting, and passing bills that contradict decades of conservative thought and violate volumes of hard-fought conservative precedent by seeking to strengthen government control over speech in the context of government employment, funding, and contracting.
Let’s make this concrete. On June 8, Judge James Plowman, Jr., of Virginia’s 20th Judicial Circuit ordered the Loudoun County school board to reinstate elementary school gym teacher Tanner Cross after he was suspended for speaking at a May school board meeting and declaring that he would not “affirm that a biological boy can be a girl, and vice versa.”
The ruling was legally sound. After all, as the judge explained, when Cross addressed the school board, he “was speaking as a citizen, not in his official capacity.” Moreover, he was speaking “at a forum where public comment was invited.” First Amendment jurisprudence provides strong protection for public employees who speak as citizens on matters of “public concern.” When Judge Plowman ruled for Cross he was simply applying settled law to clear facts.
The Cross decision comes shortly after a key federal court of appeals ruling held that a public university professor named Nicholas Meriwether could not be compelled to use preferred pronouns on the job. In other words, even when he was acting in his official capacity, the power of the state to compel his speech was profoundly limited.
Moreover, in mere days, the Supreme Court is expected to rule that the city of Philadelphia may not exclude Catholic Charities from participating in the city-run foster-care system even when Catholic Social Services (CSS) violates the city’s nondiscrimination policy by refusing to provide written endorsements for same-sex couples.
Both the Cross and Meriwether cases represent defenses of First Amendment doctrines that have preserved the jobs and speech rights of countless Americans from across the political spectrum. Those doctrines represent the embodiment of confident pluralism—a worldview that respects opposing views and refuses to permit an expanding government to become an instrument of censorship and stifling intellectual conformity.
If CSS prevails against Philadelphia, it could well represent the culmination of a decades-long (mainly) conservative effort to reverse Employment Division v. Smith, a 1990 opinion by Antonin Scalia (yes, Scalia) that profoundly limited the reach of the Free Exercise Clause of the First Amendment.
A victory by CSS would be every bit as much a victory for American pluralism as the free speech victories in Cross and Meriwether. The resurrection of the Free Exercise Clause would benefit every American religious tradition, not just Catholics. It could help end the sense of existential dread that many conservative Americans feel about the liberty of the churches and schools.
Conservative America rejoices, right?
Not so fast. Let’s consider one of the pet projects of the New Right—banning Critical Race Theory. This isn’t confident pluralism. It’s fearful, authoritarian populism. And it will only truly happen if courts start to unwind the precedents I’ve outlined above.
Let’s take, for example, one of the first salvos in the legal CRT wars: President Trump’s Executive Order 13950, which purported to combat “race and sex stereotyping” by prohibiting the military and federal agencies from engaging in training that advance “divisive concepts,” “race or sex stereotyping,” and “race or sex scapegoating.”
The federal government can dictate what kind of diversity training its employees receive, but the order went even farther—and prohibited even government contractors (private entities) from training their own employees in those same ideas. If you wanted to do business with the government, the government was going to put its eyes squarely on your diversity training materials.
But the order went further still, prohibiting the use of any federal grant funds to promote the prohibited concepts. Taken together, the provisions of the executive order directly contradicted a longstanding conservative effort to roll back the connection between state funds and state ideological control.
On December 22, 2020, a federal district court promptly and properly enjoined enforcement of Trump’s order. The Biden administration has repealed it.
Rather than view Trump’s unconstitutional order as a cautionary tale of government overreach, red states viewed it as a model—leadership by example. And thus the race to ban CRT was on. As I’ve written before, red state after red state (including my own state of Tennessee) is hustling to ban not just advocacy for “divisive concepts” or CRT (often poorly and imprecisely defined), but also even inclusion of such concepts in a course.
Today the Florida board of education enacted a new rule that contained the following language:
“Instruction on the required topics must be factual and objective, and may not suppress or distort significant historical events, such as the Holocaust, slavery, the Civil War and Reconstruction, the civil rights movement and the contributions of women, African American and Hispanic people to our country … Examples of theories that distort historical events and are inconsistent with State Board approved standards include the denial or minimization of the Holocaust, and the teaching of Critical Race Theory, meaning the theory that racism is not merely the product of prejudice, but that racism is embedded in American society and its legal systems in order to uphold the supremacy of white persons. Instruction may not utilize material from the 1619 Project and may not define American history as something other than the creation of a new nation based largely on universal principles stated in the Declaration of Independence.” (Emphasis added.)
Think about the highlighted portions for a moment. The definition of CRT isn’t just grievously incomplete, it will obviously deter the teaching of an extraordinary number of legal doctrines and historical events that did, in fact, embed racism in American legal systems. Moreover, while I take a back seat to no one in the defense of the ideals of the American founding, it’s simply a fact that the effort to comply with the dictates above will chill the teaching of a myriad of historical events and competing theories of American history.
It’s absolutely true that states have broad authority over school curricula, and it’s also true that public school teachers, like most public employees, have scant free speech rights on the job. (University professors possess far more freedom—the Supreme Court has long safeguarded academic freedom in higher education.) But there is nonetheless a deep contrast between a movement that seeks to broaden the marketplace of ideas and another movement that seeks to ban the expression of disfavored concepts.
If the new right prevails and either defeats or transforms the conservative legal movement, it will not like the world it makes. Degrade the First Amendment, and watch your freedom depend entirely on your political power. You’ll end up banning ideas you dislike in jurisdictions (like Tennessee) where those ideas have little purchase and empowering those ideas in jurisdictions (like California) where they command either majority support or majority acquiescence.
Or, to put it bluntly: If you can ban CRT in one school, you can compel it in another, and heaven help the professor who tries to stand in the way.
Even worse, you’ll empower the federal government to use its nationwide reach to override the actions of even the most right-wing jurisdictions. Empower it to attach an increasing number of expressive conditions to the receipt of federal funds and watch the shock waves ripple through even places like Liberty University. The largest Christian university in the world and a bedrock conservative institution receives close to $800 million per year in federal funds.
The outcome of this intramural right-wing battle is very much in doubt. A resistible force (the new right) is confronting a movable object (the conservative legal movement). For now, however, the movement that’s sweeping legislatures has little influence in court, and judicial review gives courts the final word. While I’d put my money on the First Amendment, I’m not completely confident that pluralism will prevail.
One more thing …
I’m going to be really self-indulgent and churn the comments with one of my own tweets. First, you might have seen that the College Football Playoff is considering expanding to a 12 team format. What would that have looked like last season? I say it would have meant Coastal Carolina in the Final Four.
One last thing …
Ok, here’s another tweet. But this is funny. I promise:
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