The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In his reply to my post, Steve Sachs coined what I think should be a useful phrase:
Reaffirming Roe would be an extraordinary black mark for the conservative legal movement, which has wanted it overturned for decades. Ditto for the GOP administrations that campaigned on Court appointments and asked pro-lifers for their votes. But I don't understand how it'd be a black mark for originalism, if only because a theory is more than the group of people practicing it: there's a big difference between originalism and "Originalism Inc."
What is Originalism, Inc.? Ruth Marcus describes this dynamic in her book about the Gorsuch and Kavanaugh confirmations, Supreme Ambition (p. 63-64):
The Trump judge pickers' focus during those early discussions was not on prospective nominees' positions on the hottest-button social issues, abortion and same-sex marriage. Instead, it was on the less sexy but—to the assembled lawyers and, as significantly, to the wealthy donors who financed the Republican party—even more important matter of what Steve Bannon would later call the "deconstruction of the administrative state." Priebus laid it out: the social conservatives who had helped elect Trump might focus on abortion and same-sex marriage, but the donors cared about regulation. They were eager to undo what they viewed as the out-of-control regulatory apparatus that had been assembled since Franklin Roosevelt's New Deal. As McGahn later told the Federalist Society, "The greatest threat to the rule of law in our modern society is the ever-expanding regulatory state, and the most effective bulwark against that threat is a strong judiciary." Overturning Chevron would help with Bannon's promised deconstruction. And that, for all evangelical voters' focus on the Supreme Court and social issues such as abortion, was the real goal. The emphasis on social conservatism and its associated hot-button issues ended with Scalia, McGahn said at the first meeting after the election to discuss the justice's successor. It was now all about regulatory relief. On that score, McGahn said, Scalia "wouldn't make the cut." On this front, Gorsuch had a big leg up on the competition—and so would Kavanaugh, with his extensive record on administrative law.
Given the priorities of those selecting the Trump nominees–members of Originalism, Inc.–perhaps it should not be surprising that the outcome in Dobbs is so unpredictable. The Wall Street Journal, the broadsheet of Originalism, Inc., made this point clearly in July 2018:
No one on Mr. Trump's list of nominees will claim to want to overturn Roe—and not because they are lying. In their caution and deference to precedent, they will be showing proper conservative respect for the law and the reputation of the Court.
Of course, Marcus observes that the people who put Trump in office, as well as the rank-and-file membership of the conservative legal movement, are not members of Originalism, Inc. They are unincorporated originalists. The disconnect between these two groups will come sharply into focus with Dobbs.