The Supreme Court term just concluded has sparked more than the usual end-of-term debate and consternation about where the Court is now. There is and should be much of both. After all, while recent decisions included victories for religious liberty and the separation of powers, the justices also engaged in all-too-familiar activism to strike down a health-care regulation setting basic standards for abortionists, contort the text of the Civil Rights Act of 1964, and stymie the Trump administration’s rollback of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program. Surveying the judicial landscape also requires keeping perspective: This can be done only by considering the state of the conservative legal movement — looking at the conditions that gave rise to it and considering its progress, with a view toward the future.
Before the modern conservative legal movement took root, the principles of originalism and textualism were widely stigmatized, from law schools to the courts. Never mind that those methods of interpretation simply respect courts’ straightforward obligation to construe legal text by the original public meaning, context, and spirit in which the people’s representatives drafted it, without injecting judges’ policy preferences. On the Supreme Court, two Republican-appointed justices fueled an era of activism under the Warren Court that largely continued under the Burger Court. When Attorney General Edwin Meese made it a goal to cultivate originalism during President Reagan’s second term, the enterprise was ridiculed by the law professoriate and by judges.
Even the landmark civil-rights judgments, starting with Brown v. Board of Education (1954), perhaps the Court’s greatest achievement of the 20th century, were widely misconstrued as anti-originalist. In fact, those outcomes reflected the original meaning of the Reconstruction amendments to the Constitution, which the Court had abandoned in the late 19th century, when it capitulated to shifting public attitudes against civil rights.
Consider the change in the landscape from 50 years ago, when “Living Constitution” activism was on steroids. When Roe v. Wade was decided in 1973, out of six Republican-appointed justices sitting at the time, five were in the majority while only one was in dissent. For decades, those who hoped the Court would stick to saying what the law is were repeatedly disappointed: by both of the remaining Eisenhower appointees who served through the 1970s, three out of four Nixon appointees, Ford’s one appointee, two out of three Reagan appointees as associate justice (putting aside William Rehnquist’s elevation to chief justice), and one of the two justices nominated by the first President Bush.
It took more than a generation of hard work, but there has clearly been a dramatic improvement in the performance of Republican appointees to the Court. Consider what has happened over the past 15 years, following the arrival of John Roberts and Samuel Alito on the Court. Constitutional and statutory principles regarding individual rights and the government structure necessary to safeguard them fared better than they had in years.
First Amendment rights received greater protection. In the face of repeated attempts by government to ration or prohibit speech during political campaigns, the recent Republican appointees have consistently voted in defense of political speech, helping to deliver wins such as Citizens United v. Federal Election Commission (2010) and McCutcheon v. Federal Election Commission (2014).
Recent Republican appointees have also voted unflinchingly in favor of religious freedom and expression — an area in which this term supplied only the latest in an unbroken line of victories going back a decade. They have also been consistent on the Second Amendment, delivering the landmark opinions in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), and on the takings clause of the Fifth Amendment.
All these areas had long revealed the Court’s blind spots, as had another area in which the Court’s jurisprudence has seen marked improvement: administrative law and separation of powers. To be sure, the fault did not lie exclusively with liberal or swing justices. No less an eminence than Justice Antonin Scalia, who more than any single person turned around the American legal culture’s rejection of originalism, wrote majority opinions that weakened the standard to protect free exercise, in Employment Division v. Smith (1990), and empowered unaccountable administrative agencies, in Auer v. Robbins (1997). (He had a change of heart on Auer late in his career.) No justice is perfect.
Scalia’s successor, Neil Gorsuch, has already come down against the Auer doctrine, is ardent on religious liberty, and has, along with Clarence Thomas, been the Court’s most outspoken defender of originalism and textualism. Not surprisingly, Thomas is the sitting justice with whom Gorsuch has voted most frequently, at 82 percent, and Gorsuch is the justice most likely to join Thomas’s opinions dissenting from the denial of certiorari. His opinion for the Court this term in Bostock v. Clayton County, which rewrote Title VII of the Civil Rights Act of 1964 to add sexual orientation and transgender status, stunned many Court watchers, but it is unlikely to turn out to be a sign that he sanctions the freewheeling invention of new constitutional rights. It is a cautionary tale, however, about the perils of confusing literalism with textualism.
The other Trump appointee, Brett Kavanaugh, has sprung no such surprises during his service, and he has given the Court a four-member bloc of originalists. In the areas of constitutional law mentioned above, he has shown himself to be aware of the Court’s recent blind spots and unafraid to correct them when the occasion arises. That extends from the separation of powers to the Court’s invention of extraconstitutional rights.
Roberts is the swing justice on the current Court, but the ideological center has undoubtedly changed. In fact, until his retreats this term from positions he had previously taken on abortion and immigration cases, his judicial philosophy bore a close resemblance to that of his predecessor, Rehnquist, with notable exceptions that include Roberts’s more robust interpretations of the First Amendment and the separation of powers. To get a sense of how much has changed, consider Rehnquist’s reputation as a staunch conservative next to Lewis Powell and Sandra Day O’Connor, who were swing justices during his time.
The last three Republican appointees to the Court arrived after serving longer on courts of appeals than any other Republican-appointed justice of the modern era. That allowed the most thorough vettings in the history of the Court. No doubt there is room for even more improvement in the vetting process.
Fortunately, over the past three and a half years, the process of vetting and nominating judges has borne fruit well beyond the Supreme Court. President Trump has appointed a total of 200 life-tenured judges authorized by Article III of the Constitution. That includes 53 judges on the circuit courts of appeals, leaving no vacancies on the second-highest courts in the land. It is in those courts that the vast majority of appeals are resolved, and three of the circuits have flipped from a majority appointed by Democratic presidents to a Republican-appointed majority.
More important, of course, is the caliber of these judges. Besides meeting traditional standards of stellar professional credentials, the newest circuit judges include outspoken originalists and textualists who had the courage to stand up for their convictions during their prenomination careers. The D.C. Circuit’s Gregory Katsas, the Fourth Circuit’s Allison Jones Rushing, the Fifth Circuit’s S. Kyle Duncan and Andrew Oldham, and the Eleventh Circuit’s Barbara Lagoa are just a few examples.
In prior administrations, many of these judges would not have been selected in the first place, for fear of having their nominations torpedoed. As it was, a number of nominations almost were, but Senate Republicans managed to outmaneuver the Democrats despite an unprecedented level of obstructionism. This achievement is important for two reasons: It has translated into more jurists who are protective of constitutional rights and constitutional structure, and it has provided a rich pool from which to draw future Supreme Court justices.
So, despite setbacks in several recent Supreme Court decisions, those who champion originalism and the rule of law must not lose heart. By any sound historical perspective, the modern conservative legal movement has brought much overdue change to a branch of government that is notoriously resistant to it. Even beyond the federal judiciary, self-described originalists and textualists now occupy countless offices across the country, including in the U.S. Senate. It took many years to get this far, and there is still much more work to be done. Every inch of ground gained in this battle has been hard-won, and much of it can be lost with the change of a single seat on the Supreme Court. Whether that happens probably rests on the choices voters make for president and for the Senate this November.
— Carrie Campbell Severino is the president of, and Frank J. Scaturro is the vice president and senior counsel of, the Judicial Crisis Network.
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