BLOCK BY BLOCK
The 40-Year Plan That Allowed Trump to Reshape the Courts
The nomination and likely confirmation of Brett Kavanaugh to the Supreme Court is—more than anything else—a testament to true, idea-driven political organizing.
Brett Kavanaugh is more than a Yale-educated lawyer and circuit court judge. He's a representative of perhaps the most successful variety of the postwar American right: the conservative legal movement.
Which is rather ironic. For years, the conservative movement has been riding a populist whirlwind. The Republican Party of Donald Trump is anti-establishment and anti-elitist. It has few allies among intellectuals, journalists, policy experts, and political consultants.
Part of the reason Trump won the GOP nomination was his defiance of party dogma—and the Beltway consensus—on immigration, trade, entitlements, and the Iraq war. He is the self-proclaimed tribune of the "forgotten men and women," of Barack Obama's bitter clingers, of Hillary Clinton's deplorables.
The conservative legal movement, by contrast, is about as elitist as you can get. It was born on the campuses of the University of Chicago and Yale. It draws on the work of philosophers who studied the foundational texts of American politics. It is proudly intellectual, championing the role of ideas in public life and eagerly defending its concepts of originalism, textualism, and (in some circles) substantive due process and natural law. Its paragons hold Ivy League degrees, still shop at Brooks Brothers, and lead staid and conventional upper-middle-class lives.
Legal conservatives don't generate controversy by tweet. They scandalize their opponents through reasoning. Kavanaugh is a spokesman for this credentialed, professional, book-oriented conservatism. And President Trump can't live without him.
Trump's decision in 2016 to put forward a list of judges vetted by the Federalist Society to replace the late Antonin Scalia won the votes of reluctant Republicans. Judicial appointments sustain a Trump coalition that includes many conservatives who quietly disapprove of the president's rhetoric and behavior. Without Neil Gorsuch, Brett Kavanaugh, and the 59 judges he's put on district and appeals courts, Trump's presidency would be at greater risk than it is today because there would be not much else for Republicans to support.
The success of legal conservatism is a testament to long-term strategy, talent development, and institution building. Its tenets glue together bow-tied conservatives with Tea Party populists. And the story of its triumph can inform other movements, from labor to the environment to education reform, that seek to fuse abstract ideas with political action.
The first ingredient must be the ideas themselves. Legal conservatism has its origins in the 1970s, during the run-up to the bicentennial of the Declaration of Independence. The movement grew in the 1980s as the country prepared to celebrate the two-hundredth anniversary of ratification. These two events led to a somewhat unexpected outburst of patriotism and national pride. America's founding was in vogue in a way it hadn't been for decades.
Robert Bork began the drive toward originalism with his 1971 article “Neutral Principles and Some First Amendment Problems.” He found allies in professors Martin Diamond, Herbert Storing, Walter Berns, and Irving Kristol, who looked at contemporary America from the perspective of classical political philosophy. Chicago Law professor Antonin Scalia, who used to lunch with Kristol in the cafeteria of the American Enterprise Institute, soon joined them. Libertarians Bernard Siegan and Richard Epstein published groundbreaking studies of economics and law in, respectively, 1980 and 1985.
Who says nothing good comes from the academy? All of these men held positions at universities, where they developed their principles, wrote for both specialized and general audiences, and attracted followers who pursued careers in teaching, legal practice, and government.
Scalia was the dynamo. He helped create the Federalist Society at Chicago. He and Bork spoke at the first Federalist Society symposium, held at Yale in 1982. Scalia's remarks there, "The Two Faces of Federalism," lamented reflexive conservative opposition to federal power. "Such an attitude is ultimately self-defeating," he said, "since it converts the instrument [of government] into a tool that cuts only one way." It was time for government to cut to the right.
Scalia's ascent from appeals court to the Supreme Court boosted awareness of legal conservatism. His impeccably reasoned and often blistering dissents granted the movement legitimacy. His charismatic personality and cutting wit galvanized the political and intellectual energy surrounding originalism. For three decades, Scalia's thoughts anchored conservative jurisprudence in the constitutional text. Liberals disagreed with, even despised Scalia. What they could never do was ignore him.
There was also a political dimension to legal conservatism. As President Reagan appointed Federalist Society cadres to the bench, Attorney General Ed Meese delivered a series of speeches making the public case for the originalist philosophy. "What, then, should a constitutional jurisprudence actually be?" he asked the American Bar Association in July 1985. "It should be a jurisprudence of original intention. By seeking to judge policies in light of principles, rather than remold principles in light of policies, the Court could avoid both the charge of incoherence and the charge of being either too conservative or too liberal."
Meese's interventions were so significant that liberal Justice William Brennan offered public rebuttals. Brennan lost the argument. By the end of the Reagan era, Meese and his staff at the Justice Department had turned a burgeoning theory of jurisprudence into a concrete reality through appointments and policy.
One of the reasons for the success of legal conservatism is that it's capacious. As the saying goes, you can't split rotten wood. By this measure, originalism is strong. There are divisions within the movement over the Ninth, Tenth, and Fourteenth Amendments. There is a debate over precedent between the advocates of judicial restraint on one hand and judicial "engagement" (i.e., activism) on the other. The movement is somehow able to restrain these varying impulses from becoming sectarian and exclusive. This achievement makes originalism both dynamic and forward-looking. The goal is nothing less than the displacement of Progressive jurisprudence and the so-called "Living Constitution."
And displacement is what’s happening. President Trump is an unlikely agent of legal conservatism. He is also one of its most successful champions. As long as Senate Democrats remain in the minority, they have little power to stop the nominations process—as their display at the opening of Kavanaugh’s hearing made clear.
Credentialed, thoughtful, determined, and grounded in institutions, the conservative legal movement is about to enjoy a new day on the Supreme Court. Its adherents play the long game. They understand that tax cuts—and presidents—come and go. Brett Kavanaugh will last a lifetime.
Matthew Continetti is editor in chief of The Washington Free Beacon. His Twitter handle is @continetti.