The Decade From NFIB To Dobbs

A very unexpected path.

This weekend I find myself in Louisville, Kentucky for Judge Boggs's clerk reunion. I clerked here back in 2011-12, and the last reunion was in June 2016. In many ways, these three points in time were inflection points for the conservative legal movement, and for my role in that process.

In June 2012, as I wound down my clerkship, the Supreme Court decided NFIB v. Sebelius. At the time, I was already writing my first book on the Obamacare litigation. The Chief Justice, and his saving construction, signaled to many conservatives that the Roberts Court was not what they thought it was. We chanted "No more Souters," but instead, we got a Roberts. In hindsight, all the signs were there–Roberts had more red flags than a Soviet parade. But NFIB crystalized the Chief's priorities. About a month later, right after my last sitting, I began teaching at the South Texas College of Law.

Fast-forward to February 2016. I was still an untenured professor, and hadn't been protested yet. My work was read in certain circles, but my influence was admittedly limited. Justice Scalia died, and Senate Republicans refused to even hold a hearing on whoever the President nominated. June 2016 represented one of the worst months for conservatives on the Supreme Court in recent memory. Whole Woman's Health, Fisher II, a 4-4 in Texas v. U.S., a punt in Zubik v. Burwell, and so on. Things looked bleak. Then, to (almost) everyone's surprise, Trump won. And in rapid succession, we got Gorsuch, Kavanaugh, and Barrett.

Now, in June 2022, I am back in Louisville. I'm tenured, and my work consistently drives national conversations. We have Dobbs and NYSRPA, and I played some role in both decisions. I could not have fathomed either case a decade ago after NFIB, or even six years ago after Justice Scalia's passing. For nostalgia's sake, I drove past my own apartment. I imagined going back in time, and paying a visit to Josh circa 2012. We had a chat about all that would happen over the ensuing decade. (I will assume the rules of time travel from Back to the Future are not in effect.) Would 27-year old Josh have even believed it? I wouldn't have. Would any of you–ten years younger–have fathomed what would happen in a decade?

The conservative legal movement has achieved something that was once unthinkable. Now, there will be backlash. And disorder. And contention. I don't expect the near-future to be pleasant. People on the right have long-internalized the crushing blow of defeat from Casey. Now, people on the left will have to internalize the even-more-crushing blow of defeat from Dobbs. For now, the reaction will be raw, but in time, a new equilibrium will form. What that balance is, no one knows. The courts will still be called upon to decide cases affecting abortion, but those decisions will turn on other, more established areas, far less contentious of law including federalism, separation of powers, and interstate comity–not whether the Due Process Clause protects a right to abortion.