Upholding Roe Would Be Final Blow to the Modern Conservative Coalition

W ith the Supreme Court expected to determine the fate of Roe v. Wade in the coming months, there has been a lot of speculation about how striking down the decision would affect abortion law and the 2022 midterm elections.

The Court’s 1973 decision to create a constitutional right to abortion has played a dominant role in U.S. politics for nearly 50 years. Removing it from the equation and returning abortion law to the states would be nothing short of an earthquake.

Yet while imagining a post-Roe world is a worthy discussion, it is important not to overlook the possibility that it could be upheld. There is a natural temptation to think that a status-quo decision for abortion law would mean a status quo in politics, but that is far from the case.

A few months ago, in our “End Roe” print issue, my colleague Michael Brendan Dougherty wrote an excellent piece observing that in the Dobbs v. Jackson Women’s Health Organization case, the conservative legal movement (most identifiably represented by the Federalist Society) would be on trial. For 40 years, the organization has successfully fought to populate the federal judiciary with judges promising to follow the Constitution. Now that there is a Federalist Society–approved majority on the Court, the justices’ fealty to the Constitution in the face of political pressure will be put to the test.

But a failure to strike down Roe would have implications far beyond the Federalist Society. It could be the final blow to the conservative movement as it has existed for decades.

The fallout from the Trump era has left conservatives already deeply fractured. Though there are currently a number of ideological disagreements among conservatives, the more significant differences have come down to attitude and tactics.

Traditional conservatives show deference to free markets and the Constitution, and seek to work from within institutions to advance conservative ends. However, these conservatives are willing to accept that closely adhering to one’s principles could mean that sometimes you don’t get the outcome that you want.

The populist/New Right wing of conservatives has much more of a smashmouth view of U.S. politics. In this view, the other side plays dirty, our civilization is under attack by a vicious mob, and we can no longer play nice. They dismiss the idea that conservatives should sacrifice any of the outcomes they want in order to adhere to principles that the Left will never observe.

To date, judicial appointments are the area where these two branches of conservatism have been most united. The effort to get constitutionalist judges on the bench was a desire shared by establishment Republicans, ideological conservatives, and populists. Taking over the Supreme Court required a combination of the slow, steady, work that conservatives did within institutions — and bare-knuckled political brawling.

The conservative majority on the Court is composed of justices who steadily worked their way through elite schools, served as federal judges, and built up unimpeachable credentials. At the same time, the majority exists because Senator Mitch McConnell prevented a vote for Barack Obama’s appointment to the Supreme Court; conservatives pressured Donald Trump into vowing to pick conservative judges, and he was heavily influenced by the Federalist Society; conservatives formed a united front to mount a counteroffensive against the assault on Brett Kavanaugh; and Republicans didn’t flinch in confirming Amy Coney Barrett about a week before the 2020 election.

If Roe is overturned, it would be a testament to this unified effort and a reminder that there is value in doing the methodical work of building within institutions. But if it is upheld, it will blow up the last vestige of unity that exists among the competing factions of modern conservatism.

If the Court were to uphold Roe, it will move many more conservatives into the outcome-driven camp. Instead of seeking judges who promise to strictly adhere to the Constitution and are vague on specifics, there will be a movement to pick judges who will explicitly commit to ruling the way conservatives want on a litany of issues.

A failure of the conservative legal project, however, would likely have broader effects by hardening the sense of disillusionment with elites that many conservatives feel and empowering those in the metaphorical “burn everything to the ground” camp. It’s likely to mean a conservatism with more Marjorie Taylor Greenes and fewer Amy Coney Barretts.

This is yet another reason to hope that the justices do the right thing and correct the atrocity of Roe v. Wade.