The Last Conservatives

By Kevin D. Williamson

Friday, April 03, 2026

 

Like most other numbskulls, Donald Trump is a profoundly incurious man, and so it probably is the case that he wandered down to the Supreme Court as another halfhearted attempt at bullying the justices, who, thanks in part to their individual characters and in part to constitutional design, are very hard to bully. But maybe he really did simply want to know what the hell is going on with the Supreme Court, which has left the president both perplexed and irritated by doing the one thing Donald Trump never has and never will do: its job. 

 

Ideological progressives and partisan Democrats have been engaged in a shameful yearslong smear campaign against the Supreme Court, an intellectually dishonest attack on the institution’s legitimacy. I have written from time to time about the “Supreme Court legitimacy watch,” i.e. the habit our friends on the left have of declaring that the high court’s legitimacy is at stake every time it looks like it might not give them their way on a policy question. The runup to Dobbs may have been the high-water mark of “legitimacy” hysteria, but the habit endures.

 

That a policy question is not the same thing as a legal or constitutional question is something that vexes and confuses progressives from both directions: How could the arch-conservative Antonin Scalia be on the ACLU’s side of a flag-burning case? How is it possible that most of the court’s liberal justices sided with the conservatives in an 8-1 ruling in the recent “conversion therapy” case? The answer is the same in both cases: The First Amendment protects speech, including—especially!—speech that powerful people do not like.

 

What is sometimes described by the aggrandizing term “judicial activism” is not really jurisprudence at all, properly understood: It is what happens when judges (and the legal commentariat) decide on the outcome first—“Of course Colorado can use the law to silence those homophobic creeps!”—and then fill in the legal arguments post hoc and willy-nilly. But the desire for such outcome-driven jurisprudence, long a hallmark of the progressive model of social change, is increasingly prevalent among Republicans, for obvious reasons: There is no one in these United States more offended by a display of principle—or by adherence to official duties—than Donald Trump, who is the most profoundly morally corrupt man ever to occupy the office he holds.

 

We have Trump’s own word on this, conveniently: He insists that by refusing to give him his way on matters he cares about, especially tariffs, justices “openly disrespect the Presidents who nominate them.” For Trump, the high court is simply another instrument of electoral power: “The Democrats on the Court always ‘stick together,’ no matter how strong a case is put before them — There is rarely even a minor ‘waver.’ But Republicans do not do this.” And in case you have any doubt: “The decision that mattered most to me was TARIFFS! The Court knew where I stood.”

 

There is a reason my colleague Sarah Isgur describes the Supreme Court as the “Last Branch Standing” in her new book of that title. The court is usually described as being divided 6-3, conservatives outnumbering liberals, and the court does hand down a fair number of 6-3 decisions—but in many of those 6-3 cases, one of the court’s liberal justices is among the six and one of the conservatives is among the three. For example, in FCC v. Consumers’ Research, a case about the constitutional limits of delegation, the ruling was 6-3, with Elena Kagan in the majority and Clarence Thomas, Neil Gorsuch, and Samuel Alito in dissent. Whatever that is, it is not an example of a politicized high court in which conservatives use their 6-3 majority to deliver the political goods for Republicans. As our friends at SCOTUSblog run the numbers, during the 2024-2025 term, only about 10 percent of the Supreme Court’s rulings were 6-3 with the three liberals in dissent; by way of comparison, the largest share of Supreme Court decisions—a 42-percent plurality—were unanimous. The liberal Justice Kagan was in the majority in 70 percent of non-unanimous cases and more than 80 percent of cases overall during the same term. Over the course of the past 20 years—years supposedly dominated by ruthless right-wing judges—about 90 percent of all Supreme Court cases had at least one liberal in the majority.

 

Like any of its predecessors, the Trump administration appeals only a small number of losses in the lower courts and then takes an even smaller share—the cases it thinks it is most likely to win—to the Supreme Court. And how is that going? The Supreme Court has rejected Trump on tariffs and on domestic deployment of the National Guard, and it seems almost certain to reject the administration on birthright citizenship. The court has stymied the president’s efforts to purge the Federal Reserve and to deport people without due process under the Alien Enemies Act. Where the Trump administration’s top policy preferences have been in conflict with the law—as they often will be in a lawless administration—the Supreme Court has reliably sided with the law.

 

The Supreme Court’s record is not unblemished, and Chief Justice John Roberts has a great deal for which to answer, in my view, including his truly incredible stretch to save the so-called Affordable Care Act and his creation ex nihilo of a presidential immunity privilege found nowhere in the Constitution. Elena Kagan was very cagey about a supposed constitutional right to same-sex marriage during her confirmation hearings but wasted no time in inventing one once she had secured lifetime tenure. Justice Ketanji Brown Jackson, the lone vote against free speech in the Colorado “conversion therapy” case, is, for the moment, the member of the court who appears most outcome-oriented in both her votes and her writing. Such departures have produced bitter criticism, not least from me, and I continue to believe that such criticism is justified—at the same time, the Supreme Court as an institution has perhaps earned some benefit of the doubt.

 

The court has, indeed, emerged as the federal government’s preeminent conservative institution. That is not to say conservative in the sense of politically right-wing—the American right, currently in revolutionist mode, has ceased to be conservative in any meaningful sense, and the high court’s conservatism can be seen in its limiting of Donald Trump’s abuses and pretenses as clearly as anywhere. The Supreme Court, rather, is conservative in the sense of defending and fortifying the American constitutional order, which is what it is there to do. In anno Domini 2026, a branch of government that is content to simply try its best to do its job is as great a display of conservatism as a realistic American could hope to see.