The Volokh Conspiracy
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In a recent Time column, prominent conservative legal and political commentator David French highlights how conservative judges have stymied Trump's bogus attempts to overturn the election. In so doing, they placed their legal principles above any loyalty they might feel to Trump and the GOP:
On Friday evening, the Supreme Court of the United States unanimously rejected Texas attorney general Ken Paxton's effort to invalidate the election results in Georgia, Michigan, Pennsylvania, and Wisconsin. Seven justices said Paxton had no standing to bring the case. Two justices – Clarence Thomas and Samuel Alito – would have granted Texas's motion to have its case heard, but they would have denied relief.
To put this plainly, not one justice was willing to overturn the presidential election. Each of Trump's three judicial appointees rejected the case. And with this single act, the Supreme Court dramatically exposed a fascinating division within the conservative movement. Time and again, elected officials supported quixotic and frivolous judicial challenges to the outcome (for example, Senator Ted Cruz even offered to argue election challenges at the Supreme Court) or remained silent. At the same time, the conservative legal movement—especially its members of the judicial branch—crushed Trump's fever dream of an improbable second term.
As French points out, the rejection of dubious GOP election challenges by conservative judges wasn't limited to the Supreme Court. Prominent conservative lower-court judges such as William Pryor (Eleventh Circuit) and Stephanos Bibas (Third Circuit) also issued forceful opinions to that effect. Just a couple days ago, Trump-appointed district judge Brett Ludwig ruled against the Trump campaign in a Wisconsin election case where he addressed on the merits some of the same claims that the Supreme Court rejected on procedural grounds in Texas v. Pennsylvania.
It is important to emphasize that the election cases are far from the only time the Trump administration's more dubious and dangerous positions have been stymied by conservative judges. Just a few days ago, the Supreme Court (including all the conservative justices, with the exception of Amy Coney Barrett, who wasn't confirmed in time to participate) unanimously ruled against the administration in an important religious-liberties case allowing Muslim victims of discrimination by law-enforcement agencies to seek money damages.
Earlier this year, conservative justices provided key votes in 7-2 decisions rejecting Trump's claims that he has an absolute right to refuse to provide tax returns and other information to congressional committees and state prosecutors. In the Bostock case, Trump appointee Neil Gorsuch (joined by conservative Chief Justice John Roberts) wrote a path-breaking opinion holding that Title VII of the Civil Rights Act of 1964 bans employment discrimination on the basis of sexual orientation—a result much hated by both the Trump administration and social conservatives generally. Gorsuch has also voted against the administration in a number of important civil liberties cases.
Numerous conservative lower-court judges have voted to strike down the administration's efforts to bully and pressure sanctuary cities and states into supporting the administration's efforts to deport undocumented immigrants. In June, the Supreme Court refused to consider the Trump administration's appeal of a lower-court defeat in the California "sanctuary state" case. Attacking sanctuary jurisdictions is, of course, a major priority for Trump and other populist/nationalist conservatives.
In each of these cases, Trump administration priorities clashed with longstanding legal commitments of conservative jurists, such as textualism (Bostock), originalism (several cases), federalism (sanctuary cities), and separation of powers (sanctuary cities, Trump v. Mazars and Trump v. Vance). And, in each case, the principles won out.
Conservative judges have sometimes issued dubious decisions favoring Trump. The 2018 travel ban ruling is perhaps the most notable example. But that ruling was the result of the longstanding (though badly wrong) belief of many judicial conservatives that immigration restrictions are exempt from most normal constitutional scrutiny, not a special favor for Trump.
Why did conservative judges stick to their principles even as most GOP politicians caved to Trump? Part of the reason is the different incentives of judges relative to elected officials. Thanks to life tenure, the former have far less reason to fear political retaliation from Trump and the GOP base. David French also highlights the differing cultural and institutional settings of the two groups:
Why are conservative attorneys and jurists rejecting Trump even as so very many GOP politicians are embracing his extraordinary, dangerous, undemocratic and legally frivolous campaign to overturn the election? The short answer is that the culture, philosophy, and incentives of the conservative legal movement are all aligned against the president.
And, to be clear, the "conservative legal movement" is a distinct, elite sub-culture within the broader universe of Republican lawyers. It represents mainly the professors, judges, and elite private-practice lawyers who form the backbone of the Federalist Society (a private nonprofit network of law school student groups and lawyer chapters across the nation) build and sustain conservative public-interest legal organizations, work at white-shoe law firms, and practice the bulk of complex conservative cases in the nation's highest courts….
Of course, not every member of the Federalist Society embodies its culture and approach – especially now that membership is often seen as mandatory for political and judicial advancement in Republican administrations. But its traditions matter, especially to its most elite lawyers.
The conservative legal movement also has a distinct legal philosophy. Overwhelmingly, "movement" lawyers are originalist and/or textualist. Laws mean what they say on their face. Disputes about meaning are resolved by the text itself or the "public meaning" (the common understanding of the law) at the time the text was passed.
Many conservative lawyers are also institutionalists. John Roberts is a notable example. They have deep respect for the reputation of the judiciary and the integrity of the bar.
Finally, the incentive structures for the best lawyers in private practice are remarkably different than those for elected conservative politicians. While a member of Congress believes he risks his career if he doesn't embrace Trump's conspiracies, a conservative lawyer in private practice risks his professional reputation (and thus his ability to progress through the highest ranks of his profession) if he does.
It's worth noting that there are some parallels to this divergence between politicians and jurists on the left, as well. During the Obama administration, liberal Supreme Court justices—including Obama's own appointees—voted against the administration in several high-profile property rights and religious liberties cases where the government took highly dubious positions favored by many on the political left. Just last year, an Obama-appointed district judge forcefully ruled against a coalition of blue states that brought a lawsuit claiming it was unconstitutional for Congress to cut the SALT tax deduction in 2017. Restoring the SALT deduction is a major priority for Democratic Party politicians, but that hasn't swayed liberal judges, who recognize that the blue states' constitutional arguments in the case were extremely weak.
Conservative judges' performance in the election cases and a number of other disputes involving the Trump administration justify a measure of conservative crowing at liberals who wrongly claimed that these judges would turn out to be Trump's "pawns." Similarly, the performance of liberal judges under the Obama administration should have tempered longstanding conservative claims that the former are just rubber stamps for whatever the political left wants.
Nonetheless, David French rightly warns that this disjunction between conservative judges and Republican politicians may not continue indefinitely:
But there are storm clouds on the horizon. If the GOP continues to indulge populism, conspiracies, and cruelty, the elite-driven conservative legal movement is fated to fall. Too many state attorneys general have already capitulated. Politicians will lose patience for judges who frustrate their ambitions, and they'll look for the lawyers – like the members of Trump's legal team – who will do their bidding, as both advocates and jurists.
There are plenty of Republican lawyers who have no concern for the culture and philosophies described above. Many of them have already sought and won public office and now abuse the power and duty of their office to support Trump. The core of the conservative legal movement, however, is discarding Trump, because the law says it must.
There are Republicans who will interpret this necessary, principled stand as an act of betrayal. They will impose new pressures on conservative lawyers and create new tests for potential court nominees.
Judges enjoy a measure of autonomy from the parties and presidents who appoint them. That's partly because of institutional design—the Framers deliberately structured the judiciary as an independent institution in large part insulated from electoral politics. As French emphasizes, it's also partly the result of the cultural autonomy of the legal profession generally and the conservative legal movement in particular.
But, for reasons French notes, that autonomy is far from complete. Over time, political parties try to appoint judges who fit their bases' preferences. If the GOP continues to be a populist-nationalist party espousing the same sort of agenda introduced by Trump (perhaps minus his egregious personal behavior), they will, over time, start to appoint judges who support that agenda far more consistently than current Republican appointees do.
If current conservative legal elites refuse to do the party's bidding out of concern for legal principles, future GOP presidents—if their priorities are similar to Trump's—will look to other, less scrupulous lawyers. Or they can look for those who are sincerely committed to the Trumpist/nationalist world view and genuinely believe that its priorities are perfectly consistent with the correct interpretation of the Constitution and other relevant laws.
If current conservative legal elites reject this world view, the political right can cultivate new elites who view it more favorably, if necessary building new institutions to do so. The next generation of conservative legal elites might include more populist/nationalist types who believe that federalism should give way to immigration crackdowns when the two conflict, religious liberties protect primarily (if not exclusively) theologically conservative Christians and Jews, civil liberties should be set aside when they become inconvenient for law enforcement or for social conservative policy priorities, the executive should have broad power to ignore congressional and judicial subpoenas, courts should indulge dubious claims of voter fraud—and so on. This approach could be justified by reinterpreting originalism to fit its parameters (a task already being pursued by a few conservative legal intellectuals), some version of Adrian Vermeule's "common good constitutonalism," a conservative variant of "living constitutionalism," or some combination of all three.
Early living constitutionalism was in considerable part pioneered by nineteenth century evangelical conservatives, who developed it to justify various constraints on liberty favored by what we would today call the socially conservative right. Modern right-wingers could potentially go down a similar path.
We already see possible early indications of such trends in the statements of conservative politicians like Senator Josh Hawley, a leading light in the populist/nationalist wing of the GOP, which hopes to continue Trump's policy agenda (with or without Trump himself). After the Bostock decision, Hawley made a much-quoted speech suggesting that traditional conservative legal principles are a "bad bargain" for religious social conservatives and that originalism and textualism should be rejected (or at least greatly modified) if they lead to rulings like this one.
Even if Hawley and his ilk come to dominate the GOP in the wake of Trump, change among conservative judges will come only gradually. Because of life tenure and the relative autonomy of legal elites, judicial appointments are a lagging indicator of party ideologies. Often, it takes a long time for changes in the latter to significantly impact the former. I readily admit that I overestimated the potential pace of such change when I warned in 2016 that Trump could well appoint judges who conform to his nationalist/populist agenda rather than traditional conservative legal commitments, when the two conflict.
But the fact that the process is gradual doesn't mean it will never happen. Consider the history of the political left. In the early 20th century, progressive judges and lawyers generally endorsed "judicial restraint" on both economic and social issues. They were, to a large extent, happy to uphold racially discriminatory laws, restrictions on civil liberties, forcible sterilization in the name of eugenics, and much else that is today inimical to modern liberals.
Even in the late 1950s, some progressive luminaries such as Judge Learned Hand and famed Harvard law Professor Herbert Wechsler, attacked Brown v. Board of Education as an example of judicial activism. Others, such as Justice Felix Frankfurter, continued to take a very narrow view of civil liberties. As late as 1962, Democratic President John F. Kennedy nominated Byron White to the Supreme Court—a justice who ended up voting against modern liberal positions on privacy and civil liberties, in numerous cases (though White, unlike Hand, was a relative racial liberal who supported Brown and other decisions striking down segregation laws).
Between the 1940s and the 1960s, however, the Democratic Party gradually moved towards a combination of racial liberalism and greatly increased solicitude for civil liberties (though not "economic" ones). Eventually, the likes of Hand, Wechsler, and Frankfurter became dinosaurs. By the 1970s and 80s, most loyal Democrats —including Democratic legal elites—could barely even imagine their party nominating such seeming troglodytes to the courts. As the examples noted above indicate, liberal judges do sometimes vote against the preferences of Democratic politicians and voters. But few if any are as radically at odds with those preferences as a Hand, White or Frankfurter would be in the highly unlikely event that a Democratic president were to nominate such a person today.
If the GOP continues to move in a nationalist/populist direction, conservative judges like Gorsuch might eventually seem just as outdated as Hand, Wechsler, and White did by the end of their respective careers.
Whether that actually happens depends on political and social trends. It might take several years or even longer before we can tell which way the wind will actually blow on these matters. In the meantime, we should be grateful for the relative autonomy of conservative judges, and for their commitment to principle over the current dangerous agenda of their party. But we should also remember that such autonomy doesn't last forever.