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The Strategic Blunders of the Conservative Legal Movement

The right's high-profile defeats at the Supreme Court in the past month aren't the product of liberal justices but the result of obvious tactical errors.

Jabin Botsford - Pool/Getty Images

The major decisions from the Supreme Court’s most recent term were good for many people. Gay and transgender workers are now protected by Title VII’s ban on workplace discrimination. The Trump administration’s ham-fisted attempt to strip the class of immigrants known as “Dreamers” of legal protection went down in flames. The Muscogee (Creek) Nation won federal recognition of its reservation’s continued existence, strengthening its sovereignty over a large swath of eastern Oklahoma.

But it was not a good term for the conservative legal movement. The justices defied expectations of a sharp right turn after Anthony Kennedy’s retirement in 2018. Instead, they handed a series of minor and major defeats to right-wing aspirations for immigration, abortion, LGBTQ rights, the Second Amendment, and more. Often, these decisions were made by 5-4 or 6-3 majorities, with the four more liberal justices being joined by one or two conservative defectors. One conservative legal scholar described the first major decision day last month as “Blue Monday” for “both for the color of the mood among conservatives, and for the political shading of the decisions.” By the end of the month, he had changed it to “Blue June.”

The Roberts Court is still deeply conservative in its current composition. But this term’s rulings show that there are limits and bounds to its willingness to deliver victories to the right wing. Those limits came into sharp relief this term not because the court itself drifted further to the center, but because the right overreached on multiple fronts—and because liberals were able to exploit their tactical errors.

No case defined this term better than Bostock v. Clayton County. A group of gay and transgender workers argued that Title VII’s federal ban on workplace discrimination “because of sex” also applied to LGBTQ workers. Though Congress hadn’t intended to protect sexual orientation or gender identity when it passed Title VII in 1964, the plaintiffs argued it was impossible to discriminate against gay or transgender workers without also discriminating on the basis of sex. That reasoning swayed Justice Neil Gorsuch, who wrote the landmark ruling for himself, Chief Justice John Roberts, and the court’s four liberals.

Gorsuch’s role surprised court-watchers on the left and right alike. Perhaps it shouldn’t have. The court’s second-newest justice relied on nothing more than textualism to reach the outcome. Under this method of statutory interpretation, judges rely on the written text of the law itself rather than divining the intentions of its authors. He took a similar approach in McGirt v. Oklahoma to rule that Congress had never fully disestablished the Muscogee (Creek) Nation’s reservation, though his basic respect for Native American rights and history also played a key role in the outcome. It’s hard to imagine a clearer vindication of textualism than Gorsuch’s willingness to use it no matter who benefits.

Despite this, his role in Bostock largely shocked and angered the conservative legal movement. “Justice Scalia would be disappointed that his successor has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards,” Carrie Severino, the president of the Judicial Crisis Network, said after the Bostock ruling. “This was not judging, this was legislating—a brute force attack on our constitutional system.” Her organization is a key player in the right-wing judicial-confirmation juggernaut, and most of its budget comes from anonymous six- and seven-figure donations. JCN reportedly spent $10 million to back Gorsuch’s confirmation. Presumably, these donors care less about the technicalities of textualism than the results to which the philosophy leads, which usually line up with conservative political causes.  

As I noted at the time, the ruling in Bostock ruptured the basic pact between social conservatives and the Republican Party over the past few decades. In exchange for large-scale electoral and political support, GOP candidates were supposed to defend religious liberty and stand athwart the sexual revolution—or at least install judicial nominees who would do it for them. Many of them used the Supreme Court vacancy caused by Antonin Scalia’s death to justify their support for Donald Trump in 2016. Then they saw the nominee who filled that vacancy write one of the most sweeping judicial victories for LGBTQ rights in American history.

“This decision, and the majority who wrote it, represents the end of something,” Missouri Senator Josh Hawley said in a floor speech after Bostock came down. “It represents the end of the conservative legal movement, or the conservative legal project, as we know it. After Bostock, that effort, as it has existed up to now, is over. I say this because if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach such a decision—an outcome that fundamentally changes the scope and meaning and application of statutory law—then textualism and originalism and all of those phrases don’t mean much at all.”

His comments reflect a deeper divide on the right about the future of the movement. A medley of right-wing figures like Hawley, New York Post columnist Sohrab Ahmari, and Harvard University law professor Adrian Vermeule have argued that conservatives should embrace illiberalism to reverse their defeats in the culture wars. Their many critics, such as National Review’s David French, note that this strategy makes little sense when the American public largely disagrees with them, their grip on the apparatus of state may be fleeting, and their abandonment of liberalism is more likely to backfire than succeed.

Fueling this debate was Chief Justice John Roberts, who resumed his old role as a spoiler for would-be conservative victories this term. He sided with the court’s liberals in June Medical Services v. Russo to strike down a Louisiana law that would have closed all but one of the state’s abortion clinics. In Department of Homeland Security v. Regents of the University of California, he made the same alliance to quash the Trump administration’s efforts to rescind the DACA program. Many court-watchers believe he is part of the reason why the court has largely avoided Second Amendment cases for the past decade, though the court’s votes on accepting and declining cases usually aren’t public.

A recurring theme in right-wing criticism of Roberts is that he’s guided not by the law, but by complaints from liberal politicians and legal commentators. “It is all too apparent that Roberts can be cowed by the Democrats’ frequent and noisy threats to pack the courts or otherwise poison their credibility and legitimacy with the public,” National Review’s Dan McLaughlin wrote last month. “By caving to such threats, he only invites more of them.” This criticism, whether intentionally or not, often ends up adopting the same attacks on the court’s legitimacy that it claims to abhor. And it’s not liberals who are out of sync with the public on abortion rights, Dreamers, and LGBTQ rights.

Fears of Roberts turning to the center, to say nothing of being liberal, are still overblown. “He is a conservative justice,” Jonathan Adler, a Case Western Reserve University law professor, wrote last week, “but more than anything else, he is a judicial minimalist who seeks to avoid sweeping decisions with disruptive effects.” As Adler notes, this does not explain all of Roberts’s rulings over the years. The chief justice infamously wrote the majority opinion in Shelby County v. Holder, which struck down a key Voting Rights Act provision and opened the door to a wave of voter suppression across the South. (This was the capstone on Roberts’s long career of working to undermine the VRA, which began when he was a lawyer in the Reagan Department of Justice.)  He can be willing to move mountains if it will structurally tilt American democracy in Republicans’ favor.

But Roberts’s judicial minimalism works well as a general rule, especially after this term. The chief justice found himself outside the majority in only a handful of the major cases this term. In Ramos v. Louisiana, he joined Justice Samuel Alito’s dissent from a ruling that required unanimous jury verdicts to find a defendant guilty. That ruling, Alito complained, “imposes a potentially crushing burden on the courts and criminal justice systems” in two states that had used non-unanimous jury verdicts to convict defendants. And in McGirt, the Muscogee (Creek) Nation ruling, Roberts warned that the majority’s ruling had “profoundly destabilized the governance of eastern Oklahoma.” (It did not.)

Just as importantly, Roberts appears unwilling to be the bagholder for political backlash when the right seeks high-profile victories. He’s voted consistently against right-wing legal campaigns to destroy the Affordable Care Act through the courts, for example, perhaps knowing that he and his colleagues would bear public blame for the chaos that might ensue. Republicans’ failure to repeal the ACA while they controlled both houses of Congress in 2017 vindicated his approach to buck-passing. And while he sympathizes with anti-abortion efforts, his majority opinion in June Medical suggests that he may be unwilling to move decisively against Roe v. Wade and Planned Parenthood v. Casey without the right case (or cases) before him.

This approach has also defined how the chief justice has treated the Trump administration. His majority opinions in Trump v. Mazars and Trump v. Vance rejected the sweeping claims of immunity put forward by the president’s lawyers, but also constrained Congress’s power to subpoena his personal records from third parties. In both this term’s ruling on DACA and last term’s ruling on the Census citizenship question, he handed defeats to the Trump administration for its sloppy approach to administrative law. Trump v. Hawaii, the Muslim travel ban case, showed that he would be willing to uphold even blatantly discriminatory policies so long as they went through the proper process. (In that case, the administration had already revised the executive order three times and it was already in force.)

So what does all of this mean for the court’s ideological makeup? Think of the Supreme Court as a car. Roberts and the conservatives are usually driving it. Roberts himself abides by certain rules of the road as long as he’s behind the steering wheel. He is disdainful of what he sees as reckless speeding; a steady pace will get you there just as surely and more safely. He abhors off-roading by other motorists and prefers to stay within certain bounds on the highway. Occasionally he will make a left turn when the traffic lights demand it. But that doesn’t mean the car’s ultimate destination isn’t to the right.

Indeed, the Christian right is largely overstating its losses this term. Even as the court embraced a reading of Title VII that would protect gay and transgender workers from discrimination, it also spent most of the term interpreting the First Amendment in churches’ favor. The court’s conservative bloc sided with a group of Catholic nuns on the Affordable Care Act’s contraceptive mandate, struck down a state ban on taxpayer funding for religious schools, and carved out exemptions from fair-employment laws for religious schools. And even though Roberts’s June Medical ruling was a setback for anti-abortion efforts, he managed to narrow the scope of an abortion-rights precedent that he purported to apply. It’s not total victory for the Christian right, but it’s nowhere near total defeat either.

Nor can the Roberts Court be reasonably called anything but a conservative court. The Supreme Court’s docket is largely discretionary, and only four votes from the nine justices are needed to hear a case. A court with five liberal justices would be more likely to summarily reverse the Fifth Circuit’s ruling in June Medical than hear it at all. And it would not eagerly take up a series of right-wing efforts to curb the administrative state. Roberts may not have gone as far as some conservatives wished in Selia Law v. CFPB, where he struck down a provision that shielded the agency’s director from dismissal but declined to go further. But a court in which Merrick Garland—the moderate judge Senate Republicans prevented Barack Obama from appointing to the court—holds the swing vote likely wouldn’t have considered the issue at all.

In a way, right-wing legal activists were a victim of their own success this term. Victory in the Gorsuch and Kavanaugh confirmation fights made them overconfident in the types of rulings they could now obtain from the high court. “In all of these cases, conservative litigators (including the Trump administration) or conservative [lower] courts moved too quickly and too sloppily to change the law for the chief justice’s liking,” Leah Litman, a University of Michigan law professor, wrote in Slate on Monday. She singled out June Medical, in which anti-abortion groups asked the court to overturn a decision less than two years old, and the DACA case, which hinged on a threadbare rationale by the Trump administration, as proof of this overreach.

Whatever Roberts’s ultimate intentions or goals may be, his moves this term will likely deflate chatter in progressive circles about countering the courts’ right-ward tilt under Trump. Joe Biden, the presumptive Democratic presidential nominee, already opposes the sort of court-packing favored by some on the left. None of the court’s rulings this term will pressure him to change that stance. The real discontent will instead likely manifest itself on the right, as conservatives are forced to confront why their efforts to tilt the court in their favor haven’t yielded more tangible results. The result of that battle may define future Supreme Court terms more than any single decision from this one ever could.