By Gregg T. Nunziata
Tuesday, April 02,
2024
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.
No comments:
Post a Comment