The Conservative Legal Movement Got Everything It Wanted. It Could Lose It All.
The conservative legal movement took shape in the wreckage of the Nixon administration. As America faces the prospect of a second Trump administration, it faces an existential test.
Richard Nixon—neither a conservative nor a constitutionalist—had the opportunity to reshape the judiciary, with four Supreme Court vacancies occurring during his term. Yet a shambolic process and limited judicial vision yielded multiple failed nominations. And one of the justices he did appoint—Harry Blackmun—wrote the opinion in Roe v. Wade, which established a national abortion policy with little legal justification.
The case demonstrated, conservatives argued, that the court had begun to act like a legislature, subverting the careful constitutional design of separation of powers. The drift of the judiciary into policymaking threatened the rule of law and frustrated America’s promise of self-government.
Against the backdrop of Roe v. Wade and the Watergate scandal, which drove Nixon from office and Republicans to a historic minority in Congress—allowing Jimmy Carter to push the courts even further left—the conservative legal movement began to take shape. Students at leading law schools founded the Federalist Society in 1982. It would become the flagship of legal conservatism, standing for the proposition that “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” A constellation of other libertarian and conservative legal organizations, centers, and advocacy groups followed. And Reagan-era Attorney General Edwin Meese helped popularize the understanding of “originalism” and the related idea of “textualism,” doctrines holding that laws, including the Constitution, have knowable meaning and should be interpreted according to the ordinary public understanding at the time of enactment.
By 2016, the conservative legal movement could congratulate itself on remarkable success. Its ideas now influenced the law, the academy, and even popular discourse. Republican candidates increasingly self-identified as “constitutional conservatives.” Constitutionalism animated Tea Party rhetoric and the priorities of the Republican majority during the Obama administration.
Then Justice Antonin Scalia, the intellectual champion of the conservative legal movement for decades, died unexpectedly in February of that year. He left a divided Supreme Court with a historic vacancy in an election year and decades of advances for the legal conservatives in jeopardy of washing away.
Into this moment descended Donald Trump—neither a conservative nor a constitutionalist. A former Democrat and Bill Clinton supporter, with a curious history of praising authoritarians and an unsteady relationship with both truth and the law, seemed ill-fit to the moment. Pressed on his conservative bona fides, Trump replied acidly: “Don’t forget, this is called the Republican Party, it’s not called the Conservative Party.” His rallies featured increasingly illiberal rhetoric and signature chants calling for the imprisonment of Hillary Clinton.
Unusually, America places its head of government and head of state in the same office. America’s presidents have a special duty of stewardship, to transcend the divisions of our politics. Candidate Trump, instead, promised to deepen them, and he amply demonstrated his temperamental unfitness for the office to which he aspired.
He said any defeat he might have, whether to Ted Cruz in Iowa or Hillary Clinton in general, could be explained only by fraud. In a country that prides itself on the peaceful transition of power, he claimed that the nation could not survive victory by the other party. In a political tradition of separation of powers and limited government, he promised that he alone could fix everything.
Trump made clear at every turn that his presidency would inevitably test our constitutional framework. Yet, in what would prove a critical decision, he mollified conservative critics by promising to choose his future Supreme Court nominees from a list of pre-announced names, full of legal conservative stalwarts.
For many legal conservatives, a two-word incantation—“but judges”—defined the Trump era. It began as an exhortation or, perhaps, a justification. Later it became a coping device, edging into gallows humor. As the shadows lengthened in the last days of a desperate and increasingly lawless presidency, it became a rueful question. A mob, incited by the president who refused to accept a lawful election, sacked the Capitol, assaulted police officers, interrupted the electoral count, and hunted down officeholders—“But … judges?”
Conservatives who had wagered the Trump gambit worth the risk got the upside of their bargain. Trump nominated many excellent men and women to the judiciary. A confident conservative majority, grounded in originalism and textualism, now controls the Supreme Court. The white whale of Roe v. Wade—long emblematic of lawless usurpation of policymaking by the Court—fell.
Contrary to the fears of liberals and the misplaced hopes of Trump, conservative judicial appointees upheld the principle of judicial independence. They refused to serve as reliable partisans and handed Trump and his administration important legal defeats. Crucially, Trump’s nominees rejected his baseless claims of a stolen election.
But these advances in jurisprudence came at a deep civic cost. The president with whom legal conservatives allied themselves used his office to denigrate the rule of law, mock the integrity of the justice system, attack American institutions, and undermine public faith in democracy. Beyond the rhetoric, he abused emergency powers, manipulated appropriated funds for personal political ends, and played fast and loose with the appointments clause, all at the cost of core congressional powers.
Republicans in Congress barely resisted these actions and increasingly behaved more like courtiers than members of a co-equal branch of government. They failed to treat either of his impeachments with appropriate constitutional gravity. House Republicans dismissed his first impeachment process. Leading senators not only ignored centuries of precedent by refusing to conduct a meaningful trial, but they debased themselves by traipsing to the White House to guffaw and applaud while the president celebrated his acquittal.
Perhaps encouraged by legislative acquiescence, Trump’s behavior grew more brazen. His term drew to an end with a physical assault on Congress as part of a soft coup. Republican enablers scrambled to dismiss his second impeachment. Later they would oppose both an independent commission and congressional investigations to hold the former president accountable. Ultimately, en masse, they would endorse him for reelection, even as he promises pardons for January 6 rioters and “retribution” on his political opponents.
Through the chaos and lawlessness, too many in the conservative legal movement remained silent—or worse. Now, as the former president faces long-delayed legal consequences for a variety of misdeeds, they stand by his self-serving slanders of our independent judiciary and obscene self-description as a “dissident.” Corners of the right even echo the former president’s strange affinity for foreign strongmen, favorably contrasting the illusion of order provided by the jackboot to the sometimes messy ordered liberty of our civic tradition.
Ominously, there are signs that the illiberalism of the Trump era has begun to infect how some legal conservatives think about their core commitments to the role of the courts. Partisans promise that Trump in a second term would nominate judges more loyal to the president while Trump-friendly, post-liberal thinkers develop theories like “common-good constitutionalism” in which conservative judges would abandon originalism in favor of promoting certain ends. Adrian Vermeule, the leading academic proponent of the latter view, has argued that “originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.” It would be deeply ironic, and the ultimate failure of the movement, if the “but judges” bargain were to end with purportedly “conservative” judges legislating from the bench.
The Founders knew that the best judges could not guarantee American liberty and preserve self-government. They considered the judiciary the least powerful, and least dangerous, branch. They put their faith, instead, in the checks and balances of the structural Constitution; they believed a self-respecting Congress would resist an overreaching executive and ambition would “counteract ambition.” Ultimately, they rested their hopes in the American people to demand this of their leaders. Washington, in his farewell address, wrote: “It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another.”
The experience of the Trump years has badly damaged these bulwarks of American liberty. Congress stands disarmed, by choice, before an ever-overreaching executive. The American people, poorly grounded in civics and frustrated by politics, do not expect a commitment to constitutionalism from their leaders. Many demand the opposite. Voters now have less faith in their government institutions and neutral proceedings, more animosity toward the opposing party, and a deepening desire that elected representatives “fight,” not legislate.
To be sure, many alarming trends predate Trump, and culpability for them lies across the ideological spectrum. Congress has long enabled abuses by presidents of both parties. Democrats responded to Trump with norm-breaking of their own. They now recklessly delegitimize the Supreme Court and paint all Republicans, even Trump skeptics, as existential threats. Some of the legal proceedings against Trump are flawed.
But saying “he didn’t start it” and “Democrats do it too” can only accelerate the civic rot that threatens the ongoing viability of the American experiment. Many otherwise sound-thinking conservative lawyers have comforted themselves with faith in the resiliency of American institutions and values. But conservatives should know that traditions and institutions can degrade over time, that liberty under law is not the natural state of man, and that defending our patrimony requires a new commitment from each generation.
We in the conservative legal movement have labored for decades to straighten the majestic columns of the Supreme Court while the foundation of the republic crumbled beneath our feet. Understandably, a movement of lawyers began with a focus on the judiciary, the legal academy, and the legal profession. But we must embrace a deeper, broader mission.
The next generation of legal conservatives must put as much emphasis on the political branches performing their proper constitutional roles as the previous generations did on the judiciary. A new emphasis on a limited federal government, a properly constrained executive, and narrowed agency powers could lower the stakes of presidential elections. Promoting federalism and local control would allow for diverse policy choices properly suited to a diverse country. A renewed commitment to the First Amendment and a broader culture of free speech affirm the ongoing process of democracy and the indispensability of mutual toleration. These values can move us away from a quadrennial battle for lasting supremacy which justifies alliance with the worst actors on our political scene, in favor of the sustainable self-government vision of our Founders.
Conservatives should also study and confront the roots of congressional dysfunction and take seriously public frustration with the electoral system. Congressional capacity and incentives, a functional budgeting process, carefully calibrated filibuster reform, overhauls to the primary system, and experiments with innovations such as ranked choice voting deserve more attention from the political right.
Above all, legal conservatives must be willing to oppose constitutional malfeasance or abdication, regardless of which political party perpetrates it. We can no longer stay silent, or “but judges” ourselves into complacency through moments of profound assaults on our common values that make self-government possible. We must engage with non-lawyers to make the case for the Constitution, the rule of law, and democracy itself. We can and must find common ground with our fellow citizens in the center and on the left.
Conservatives, Lincoln said, defend “the old and tried, against the new and untried.” American conservatives uphold a tradition of liberty under law, from which our nation has reaped so many blessings. In a country that anchors its system of government in legal texts, conservative lawyers have an especially important role. If we fail to meet this moment and defeat the mounting illiberalism on the left and right, we will lose the Republic we inherited. In such a future, immaculately originalist Supreme Court opinions from the 2020s will prove cold comfort.
