Heaven was so close Mark Tushnet could feel the years rolling off him.
Tushnet was a 70-year-old Harvard Law professor in 2016, but he evinced the youthful zeal of a Harvard undergraduate when he published a manifesto that May encouraging his fellow progressives to start imagining the possibilities of a reinvigorated progressive jurisprudence that would be ushered in by Hillary Clinton. Adverse precedents “overruled at the first opportunity.” Judicial nominees in the mold of Thurgood Marshall. Defeated social conservatives treated like the losers in World War II. The days of “looking over [your] shoulders” in fear of the conservative bogeyman are over, he exhorted. The time for “abandoning defensive crouch liberal constitutionalism,” as he titled his blog post, had come.
Things didn’t work out quite as Prof. Tushnet hoped. Donald Trump won the presidency and transformed the judiciary, including naming three justices to the Supreme Court. Not only would conservative dominance of the nation’s highest court endure, but it would be entrenched.
How potent the 6-3 majority created by Trump’s picks could be was demonstrated at the conclusion of the court’s most recent term. During the last week of June, it ruled against restrictions on public prayer by government employees, curtailed the EPA’s ability to regulate greenhouse gases without express authorization from Congress, declared Americans have a constitutional right to keep and bear arms outside their homes, and, above all, captured that holiest of grails by at last overturning Roe v. Wade. For conservatives, it was everything they could have hoped for and more. The bargain they’d made with Trump to vote for him in exchange for the judiciary had been fulfilled.
Staggering triumphs for one side of the political spectrum are staggering blows for the other. The Supreme Court’s term was a rout for the Left. Progressives are therefore understandably upset with it. Given the magnitude of the losses they suffered and those to come, their hostility toward the court, along with their fervor for court-packing, term limits, jurisdiction stripping, and other measures to bring it to heel, is certain to grow.
Being aggrieved with the tenants of One First Street NE is a feeling those on the Right know all too well. Indeed, until the end of last month, conservatives were as likely to be found among the justices’ annual detractors as their counterparts on the Left. Despite their nominal control of it, the Supreme Court produced one decision after another that at best disappointed and at worst infuriated them. So much so that some had begun to cast doubt on the conservative legal project itself. For a Right inured to being let down, late June’s conquests were a reversal of fortune. A reversal of fortune that just two years ago seemed like it would never happen.
Post-Legal Conservatism
“We lived to see it,” marveled Dan McLaughlin of National Review at Dobbs v. Jackson Woman’s Health Organization, which overruled Roe v. Wade. Conservatives were elated, but the elation was tinged with relief that they would not have to spend one agonizing moment more wondering if the day would ever arrive. Roe’s demise might have been “a generational defeat for” the Left, in the words of Slate’s Jordan Weissmann, but for the Right, it represented a victory generations in the making. The 24 hours between NYSRPA v. Bruen, the Second Amendment case, and Dobbs were arguably the biggest 24 hours in the history of the conservative legal movement, the culmination of everything it has worked for.
As recently as 2020, the Supreme Court had opportunities in other cases to achieve similar results yet spurned them. That April, the justices dismissed a challenge to a New York City law restricting the ability of residents to transport guns outside their homes because the law had been changed before the case was heard. Later in June, they rejected a Louisiana law that required doctors performing abortions to have admitting privileges at a local hospital. Chief Justice John Roberts had voted to uphold a similar law from Texas in 2016 but voted with the liberals this time on the grounds that he didn’t want to invalidate a precedent that was only four years old.
Most galling of all, the court held in Bostock v. Clayton County that the Civil Rights Act’s prohibition on sex discrimination applies to sexual orientation and gender identity. Adding insult to injury, Neil Gorsuch, supposedly a stalwart judicial conservative, authored the decision, which he grounded in the textualist methodology preferred by the Right.
Bostock was a devastating blow that left conservatives dejected and reeling. Missouri Sen. Josh Hawley, a former clerk for Chief Justice Roberts, lamented that “it represents the end of the conservative legal movement or the conservative legal project as we know it.” Josh Hammer, a lawyer and right-wing critic of the conservative legal establishment, castigated Gorsuch as “the latest member of the ignominious list of Republican nominees at the Court to cave on a civilization-defining cultural issue.” The conservative legal movement, he bemoaned, “has failed conservatism.” Hammer, like Hawley, called for a complete overhaul of the way the Right trains its legal cadres and vets its judges. Unless conservatives “radically change course, we will not only consign ourselves to failure, but to the inevitable breakup of the conservative legal movement.”
It was against this backdrop that late June’s triumphal sweep occurred. And not a moment too soon, for in the interim, disaffection with the movement has only increased. The alienation owes not only to countless disappointments and repeated betrayals or to antipathy toward Roberts’s cackhanded politicking. Rather, it is due to a burgeoning perception that the movement, and the interpretive doctrine of originalism that is its lodestar, are no longer adequate for the battle at hand.
The guiding light of this dissident approach is Adrian Vermeule, Ralph S. Tyler professor of constitutional law at Harvard. Though originalism once “served legal conservatives well,” he wrote in the Atlantic two years ago, it has become “an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.” In its stead, Vermeule advocated what he christened “common-good constitutionalism,” a framework “based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.”
Taking his cue from Tushnet (whom he references obliquely), Vermeule urged conservatives to abandon the “defensive crouch of originalism” and refuse “any longer to play within the terms set by legal liberalism.” Originalism is incapable of promoting a positive vision such as the one Vermeule articulates because, in his reading, it emerged at a time when the legal firmament was dominated by liberalism. It was a shield, and a necessary one. But shields are by their nature defensive. Vermeule, like Tushnet, wants his side to go on offense, especially now that legal conservatism is no longer a beleaguered insurgency but firmly within the jurisprudential mainstream.
Vermeule has remained a prolific exponent of common-good constitutionalism since introducing the concept in 2020, publishing an array of op-eds and a book elucidating his theory. His critique of originalism is not without merit or adherents. As he observed earlier this year, Justice Gorsuch’s opinion in Bostock was a perverse application of originalism that betrayed “its own promise to leach arguments about justice out of interpretation.” Hammer, who espouses his own version of “common-good originalism,” was blunter but no less just in finding Gorsuch guilty of “rank analytical sophistry.”
Moreover, as Vermeule wryly noted when now-Justice Ketanji Brown Jackson embraced originalism during her confirmation hearings, if every judge is an originalist, then the term has no meaning. That someone everyone expects to be a down-the-line progressive could claim its mantle with a straight face was not a triumph for the philosophy but “a Pyrrhic victory of epic proportions,” proof it has become an empty dogma to be invoked without faith or conviction.
Because the common good requires a robust, powerful state to preserve and propagate it, Vermeule doesn’t share the Right’s animosity for the administrative state. He criticized the Supreme Court’s rejection of the Biden administration’s COVID vaccine mandate for large employers on the grounds that protecting public health is one of the primary obligations of government. He also excoriated West Virginia v. EPA, the ruling that curtailed that body’s ability to curb carbon emissions from power plants, for violating the four pillars of conservative jurisprudence: “originalism, textualism, traditionalism and judicial restraint.” John Roberts’s opinion confirmed “there is no conservative legal movement, at least if legal conservatism is defined by jurisprudential methods rather than a collection of results.” Instead, like any other legal school, it jettisoned its principles when the result it craved, circumscribing federal regulatory authority, was within its grasp.
The campaign against the administrative state has been waged by what Vermeule styles the “libertarian legal movement.” A considerable portion of the disillusionment on the Right toward legal conservatism has been fueled by a sense that libertarians have gained the upper hand in the movement to push an agenda at best neutral and at worst hostile toward social conservatism. This view was expressed recently in a New York Times op-ed attacking the Federalist Society, the institutional locus of the conservative legal project.
Like Vermeule, its authors, Sohrab Ahmari, Patrick Deneen, and C.C. Pecknold, are associated with the nascent “post-liberal” strain of conservatism. The Federalist Society’s principal mission, they charge, has not been rolling “back abortion and other elements of the sexual revolution,” but mounting “an economic revolution of its own, on behalf of corporations and other powerful market actors” at the expense of “the common good of the nation.” The Society is just one of several “legacy institutions” they indict for being “ultimately hostile to core commitments that ought to inform the right” and perpetuating “a version of movement conservatism that holds at bay authentic American traditions that run counter to corporate interests.”
Ahmari and co.’s broadside was published 10 days before the Supreme Court released Dobbs. It had taken a seeming eternity, but the conservative legal movement had finally done what it was created for: undoing Roe. If Roe weren’t struck down, warned Catholic University law professor J. Joel Alicea this past winter, that might deal it “a potentially fatal blow.” But struck down it was, and legal conservatism a la the Federalist Society was vindicated.
Which isn’t to say skeptics’ doubts were unwarranted or their fears unfounded. From the court’s persistent refusal to rule on the Second Amendment to John Roberts’s evasions and chicanery to “victories” such as Masterpiece Cakeshop and Fulton v. Philadelphia that on closer inspection turned out to be so narrow as to be indistinguishable from defeats, and, of course, the perennial failures on abortion, conservatives felt as though they got the shaft time and again. Out of these serial disappointments was born the frustration and disillusionment with legal conservatism to which Vermeule and others have given voice.
Despite the conservative legal movement’s deliverance, that voice will not go silent. Nor should the conflict be regarded as a strictly intramural affair. The dispute rather should be seen as part of the intellectual ferment that has been roiling the Right since Donald Trump’s election. Whether conservatism should continue in a more populist direction or return to its pre-Trumpian form is a debate that shows no signs of abating. Vermeule and Ahmari, Pecknold, and Deneen hearken back to traditions of pre-capitalist, pre-liberal conservatism: all four to the natural law and Catholic integralism; the latter three, in their op-ed, also to civic or classical republicanism.
With the Federalist Society legal project having at last achieved its raison d’être, claimants for its throne may go the way of most would-be usurpers. Vermeule’s critics, who are legion, no doubt hope so. Another possibility is that common-good constitutionalism remains a viable alternative but does so while being absorbed into the broader movement instead of becoming a distinct rival to it. One mark in Vermeule’s favor is that he recognizes better than his foes do that legal conservatism is not in the position today with respect to the law or American politics that it was 40 years ago.
Moreover, conservatism itself has changed. The conservatism of Trump was no more that of Reagan than Reagan’s was that of Eisenhower or Hoover. It could not be otherwise. Ideologies move. They’re not static. Like all living creatures, they adapt and evolve to survive. Conservatism is no exception. The world changed, and so did it. It did so before and will do so again. And this particular evolutionary cycle had nothing to do with Donald Trump. It was inevitable, simply because it is 2022, not 1980, or 1930.
So, too, will legal conservatism change. The completion of its task may even accelerate its evolution as it seeks new objects to pursue. Or perhaps it will fly apart without what Hammer calls its “centripetal force.” Before, it had one path, one destination. Now, both are open. Time alone will determine what course it charts.
Success Is Never Final
Six years ago, Mark Tushnet prophesied the abandonment of defensive crouch constitutionalism. The prophecy came true. But in true Delphic fashion, the defensive crouch constitutionalism that was abandoned was not the one he foresaw. Given the role his notorious blog post (“Leninist,” one critic derided it) played in galvanizing conservatives, the outcome was doubly ironic.
Now, legal conservatives are the ones making lists of precedents to toss out that, in Tushnet’s words, “were wrong the day they were decided.” Already on next term’s docket are cases that could outlaw affirmative action, shrink the criteria for what qualifies as racial gerrymandering under the Voting Rights Act, vastly expand state legislatures’ power to run elections, narrow the scope of the Clean Water Act, and allow some business owners to refuse to serve gay customers. Politico’s assessment that the Supreme Court “is just getting warmed up” does not seem too far off the mark.
A Right impatient to secure the rewards long denied and longer due it may well demand more, faster. Hammer, from his perch as opinion editor for Newsweek, sounded remarkably like Tushnet in dismissing neutrality as legal conservatism’s ultimate goal. What it should strive for is “victory. The time for playing jurisprudential and judicial defense is thus over. The time is now right for legal and judicial conservatives to go on offense.” What does that mean? For starters, using the 14th Amendment to ban abortion nationwide and “bolstering America’s traditional ecumenical Christianity once and for all.”
To stifle this “conservative revolution,” progressives have little recourse. Court-packing remains deeply unpopular; a majority of the public still rejects it even after Dobbs, according to polls. The Left, though, will likely double down on it as one of the few tangible remedies it can offer to reverse its shattering loss. Democrats hope the fear and fury provoked by Roe’s death will boost their prospects in the midterm elections. But there is already a growing recognition that the quest to restore a federal constitutional right to abortion may have to be a years- or even decadeslong one, just like the mission to eliminate it.
There is a lesson here for the Right. For nearly 50 years, it seemed as though the Supreme Court, no matter how many justices Republican presidents appointed, would never overturn Roe. The ultimate prize was always one vote away, to conservatives’ perpetual dismay. Then, suddenly, that vote was there.
Who can say what fate, contingency, or accident might intervene to deliver a similar turn of fortune’s wheel to liberals who today are not so much in a defensive crouch as they are flat on their backs? If success is never final, neither is defeat permanent. In 2020, the Supreme Court was still rejecting relatively modest restrictions on abortion. Two years later, the right to abortion itself is no more. It needs only a historical hiccup or two to upend the future.
Conservatives are in a celebratory mood. As they should be. Their triumphs were a long time coming. Even better, they were the right outcomes. That won’t always be so, a truth they should not lose sight of. As they embark on this new era ready to flex their muscles after so long in their defensive crouch, if they take away nothing else from their long sojourn in the proverbial wilderness, they should take away this: The reason they were able to endure their defensive crouch was because it was constitutional. They passed laws, won elections, and appointed judges. They fought and struggled within the system. That is the ultimate defensive crouch. Progressives, having, contra Tushnet, spent not a second bending their knees, have no theory of how to adopt one. Instead, the Supreme Court has joined the Senate, the Electoral College, the states, and the Constitution as an institution they seek to deform or destroy because it stands in their way.
In the end, therefore, it is unlikely that either conservatives or progressives will willingly resume the defensive crouch they imagine themselves to have suffered for so long. The one having finally entered the promised land, and the other having been tantalized by their own vision of it, both will do whatever they can to possess it. Which makes possible the worst outcome of all: that in abandoning their defensive crouches, they will abandon constitutionalism, too.
Varad Mehta is a writer and historian. He lives in the Philadelphia area. Find him on Twitter @varadmehta.
