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The sudden resurgence of the conservative legal movement

Social conservatives had lost faith in the Federalist Society’s ability to reshape America through the courts. Then came Amy Coney Barrett.

Judge Amy Coney Barrett appeared at the Federalist Society's National Lawyers Convention in Washington last November.
Judge Amy Coney Barrett appeared at the Federalist Society's National Lawyers Convention in Washington last November.Samuel Corum/NYT

Just a few months ago, right-wing commentators pronounced the conservative legal movement dead. True, the Supreme Court had a solid conservative majority, including two justices picked by President Trump. But the court had handed down a series of surprise wins for progressives on abortion, immigration, and LGBTQ discrimination. Conservative Christians were irate. Senator Josh Hawley noted that religious conservatives had struck a bad bargain in supporting the GOP in return for control of the Supreme Court and called on his allies to reject it.

That didn’t last long. Now, social conservatives like Hawley are back in the fold, cheering on Trump and his Supreme Court pick, Amy Coney Barrett.

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Barrett’s rise shows how two very different factions of the conservative movement — factions held awkwardly together by a powerful conservative network known as the Federalist Society — might work in concert to push the Supreme Court’s conservative counterrevolution further and deeper in the decades to come.

In the early 1980s, when the Federalist Society was a ragtag resistance group of conservative law students, it might have been hard to imagine that the group would one day handpick six of the Supreme Court’s nine members and a majority of federal district and appellate judges appointed by Republican presidents. But it has matured into a powerful and influential organization of 70,000 lawyers, academics, judges, and politicians. Most importantly, since the George W. Bush administration, the Federalist Society has achieved, to quote one of its leaders, a “de facto monopoly” on the credentialing and selection of judges for Republican administrations.

For social conservatives, the Federalist Society was never a perfect fit. The early Federalists had an identifiable libertarian bent, something that made social conservatives uneasy. Moreover, social conservatives were not enamored of originalism, the philosophy that holds that judges should interpret the Constitution based on the intentions of its authors or the original public meaning of its text rather than coming up with new interpretations of it. Social conservatives could see that originalism might not deliver all the outcomes they wanted, like the recognition of a constitutional right to life that would make all abortions illegal. On the other side, founding members of the Federalist Society who wanted to be taken seriously by their liberal colleagues at elite law schools were dismissive of conservative Christian arguments about the biblical foundations of the law.

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But eventually, the Federalist Society offered social conservatives their best chance to reshape the law. Even though originalism might not lead to the recognition of constitutional rights that conservative Christians favored, it seemed to be a perfect weapon for attacking progressive precedents. Robert Bork, the hero of the conservative legal movement, described Roe v. Wade as the foremost example of judicial activism.

The alliance between Christian conservatives and the conservative legal movement made political sense too. In the early 1980s, the Republican Party had knit together factions that shared little beyond a love of Ronald Reagan. But Reagan could not be president forever, and the GOP needed a new way to unite its disparate constituencies and deliver the victories it had never been able to achieve through national politics. So, starting in the late 1980s, social conservatives turned their attention to the courts.

As social and Christian conservatives would soon learn, the path to power for legal conservatives ran through the Federalist Society. By the time the GOP returned to power with the election of George W. Bush — a president with significant conservative and evangelical Christian support — the Federalist Society had consolidated its influence over judicial selection. Nothing exemplifies this power more than the withdrawn Supreme Court nomination of Harriet Miers — a social conservative from Texas who was unknown to the Federalist Society network and deemed too risky and not sufficiently credentialed. After Federalist Society members vocalized their disapproval, Miers was withdrawn and replaced with Samuel Alito, a commodity known to the Federalist Society.

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With the Trump administration, the GOP has doubled down on its effort to control the courts. In 2016, social conservatives had misgivings about Trump, with good reason. Trump had spent most of his career as an outspoken pro-choice playboy. While many pro-lifers prized a traditional vision of sex and gender roles, Trump bragged about sexually assaulting women and then passed it off as locker room talk. But the allure of a Trump-Federalist Society alliance that would reshape the federal courts for decades to come was strong for social conservatives who had been on the losing end of the culture wars for decades. A Faustian bargain was struck.

In office, Trump seemed poised to repay social conservatives. By replacing Anthony Kennedy, the Court’s long-time swing vote, Trump appeared to have the votes to reverse Roe v. Wade and much more. But the alliance between the Federalist Society and conservative Christians was always fragile.

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That’s what conservatives learned this summer. Chief Justice John Roberts, a Federalist Society darling, joined his liberal colleagues in striking down an abortion law and saving the DACA program, allowing immigrants brought to the United States illegally as children to remain (at least for now). Neil Gorsuch, a Trump nominee, joined Roberts and the liberals to hold that Title VII of the Civil Rights Act outlawed discrimination on the basis of sexual orientation and gender identity. Social conservatives didn’t try to hide their outrage. In The Atlantic and The Spectator, commentators called for a new conservative movement to shape the courts.

It was never going to be that easy. Social conservatives — in particular, conservative Christians — who have attempted to build institutional power centers outside the Federalist Society network have by and large remained marginalized within the conservative movement, within the legal profession, and within the broader legal culture. For better or worse, the Federalist Society has become the gatekeeper for all legal conservatives hoping to shape law and courts.

That is why so many conservatives are rallying around Amy Coney Barrett. Mentored by Antonin Scalia, a conservative legal legend, Barrett had long been a star in the Federalist Society. As an antiabortion, devout Catholic, she also had a biography that made conservative Christians trust her.

But fractures in the conservative legal movement will not stay hidden for long. Promising control of the Supreme Court has helped the GOP edge out the Democrats in the Electoral College and united right-wing voters with vastly different priorities. But the court can be devilishly unpredictable. If the court does deliver extremely conservative outcomes, it may trigger a backlash. We’ve already seen proposals to change the number of justices on the Supreme Court or the length of time each one can serve. History has shown examples of massive resistance to some Supreme Court rulings and a flat refusal to abide by others. Any of these changes could cripple the institution the conservative movement is banking on to advance its goals. So yes, Donald Trump can sell Republican voters on a Supreme Court that will grant conservatives’ dearest wishes. But as is so often true of this president, the buyer should beware.

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Amanda Hollis-Brusky is associate professor of politics at Pomona College and the co-author of “Separate But Faithful: The Christian Right’s Radical Struggle to Transform Law and Legal Culture.” Mary Ziegler, a law professor at Florida State University, is the author of “Abortion and the Law in America: Roe v. Wade to the Present.”