Legal Conservatism for Our Time

Fall is not just a time for campfires and s’mores—it’s also when the Supreme Court starts its new term. This session comes at an especially significant time for conservatives, given that in just the last few years almost all of the most infamous cases that have been driving legal conservatism for roughly two generations have been overruled or substantially narrowed. Indeed, the Supreme Court has repudiated and formally overruled Lemon v. Kurtzman (1971), Roe v. Wade (1973), and Chevron v. NRDC (1984)—cases that, respectively, represent church-state separationism, abortion rights, and the administrative state. Likewise in SFFA v. Harvard (2023), the Supreme Court sharply criticized and substantially narrowed Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003), the two doctrinal pillars of affirmative action.

Such success, however, raises an unnerving question: What’s next? That is, what should drive the conservative legal movement now that its biggest enemies have seemingly been vanquished?

Before we can supply an answer to that question, however, we must first give some background on the conservative legal movement, beginning with an important distinction between legal and political conservatism, which will show that legal conservatives must create new strategies that are tailored to our current political and social moment.

A Way Forward

Is a legal conservative simply someone who wishes to apply the law in a way that achieves politically conservative ends? Or is there something distinct about the goals of a legal conservative as opposed to a political conservative? These are surprisingly difficult questions to answer, in part because the answers, at least as a descriptive matter, will depend on the time period in question.

Before the formal rise of the conservative legal movement in the 1980s, it would seem obvious that the goal of legal conservatism was to conserve essential features of the American legal order. But starting in the 1980s, with the creation of the Federalist Society and the ascendancy of originalism in the Reagan Department of Justice, legal conservatism became a distinct movement within American conservatism. Being a legal conservative meant holding a distinct agenda with regard to how judges and lawyers interpret the Constitution.

This shift toward a more interpretive orientation has shaped the modern-day conservative legal movement in three important ways.

First, originalism has become the touchstone of legal conservatism, so that when progressives like Elena Kagan and Ketanji Brown Jackson formally align themselves with originalism, this is seen as “the triumph of originalism” and the conservative legal movement, even if it means that originalism will be used as a tool for progressive ends.

Second, since preserving originalism has become the ultimate goal of the movement, legal conservatism is now often framed in negative terms—that is, in terms of overruling non-originalist decisions rather than producing a positive agenda. For example, legal conservatives made overruling precedents like Roe, Lemon, and Chevron a priority on the grounds that these decisions departed from the Constitution’s original meaning. But legal conservatives rarely speak of these decisions in terms of the substantive evils they represented. Nor do we focus on creating a legal agenda as a corollary to overruling these cases.

Third, a project centered around eliminating non-originalist cases tends toward a narrow focus on how precedents are interpreted and distinguished, thereby giving legal conservatism a technocratic orientation. As a result, legal conservatives treat the overruling of bad precedents as outright victories, ignoring the nexus between law and politics in terms of whether overruling bad decisions will effectively produce a political and social climate that will eliminate the actual harm at issue.

While Dobbs overruling Roe is surely a conservative victory in the abortion war, it is difficult to proclaim that the conservative mission has been accomplished, given that abortions are still trending upwards. In 2024 alone, Americans had over one million abortions. Likewise, SFFA v. Harvard was certainly an important legal victory, but it did not end affirmative action, evidenced by how the decision has not prevented affirmative action practices from continuing across the nation.

In sum, we need a way of thinking about legal conservatism that is (1) broader in content and less focused on narrow interpretive questions, (2) less oriented around overruling particular precedents and more focused on producing a positive agenda, and (3) more tethered to American politics and social movements in a way that conceives of law as a way to sustain the American way of life.

None of this is to say that we should disregard originalism, particular precedents, or legal formalities. But we need something more: a forward-looking project that is centered around producing a legal and political culture that can foster a virtuous political and social order.

The Supreme Court and Political Regimes

To move beyond the movement’s current narrow interpretive focus, it is helpful to step back and think about the Supreme Court’s jurisprudence in terms of distinct eras or regimes that combine political action with a particular constitutional morality.

Political scientists generally divide the last 150 years of Supreme Court jurisprudence into three general regimes. The period from the late 19th century to the 1930s is known as the “Lochner era”—named after the Supreme Court’s landmark decision in Lochner v. New York (1905). In that case, the Court invalidated a New York State labor regulation on the ground that it interfered with contractual rights under the 14th Amendment’s Due Process Clause. Even though similar cases were decided before and after the Lochner decision, this period is associated with Lochner because the Court’s reasoning neatly captures the laissez-faire politics and Lockean (that is, property-based) principles underlying late 19th- and early 20th-century jurisprudence.

It is important to note that the Lochner era was not limited to the Supreme Court and particular economic policies. Indeed, we can understand this period more clearly in terms of a broader constitutional morality, encompassing much more than the contractual liberty at issue in Lochner. This included many non-economic liberties such as the right to send one’s child to a private school, to share and acquire knowledge, and to associate freely according to one’s preferences. This way of thinking about American constitutionalism was also expressed outside of the Supreme Court, as seen in the broader 19th-century movement against “special legislation.”

This constitutional morality, however, began to fade away in the late 1930s with the rise of the New Deal under FDR. In this era, scholars and political actors began to think of the federal government’s powers more expansively and dynamically, with broad authority over the national economy, including the power to regulate intrastate economic affairs.

Once again, this constitutional regime was not confined to a narrow set of issues. While we often think of the New Deal era as driven by FDR’s expansion of federal power, the period was characterized more broadly, at least constitutionally speaking, as a rejection of the Lochner era’s concern with the dangers of class or special legislation in economic relations. Under the New Deal constitutional morality, all economic affairs, including labor relations and working conditions, were essentially public in nature, subject to both federal and state regulation. According to this constitutional morality, the federal and state governments were free to take on these matters as warranted by political circumstances, even in ways that preferred some groups or classes over others, such as siding with workers over management in labor disputes.

In the 1960s, the New Deal constitutional morality was replaced by the civil rights era, as the federal government began to regulate interpersonal relations in various settings (schools, private businesses, housing, etc.). This was a substantial departure from the New Deal era’s conception of governmental authority. Indeed, the New Deal’s constitutional morality did not warrant government regulation of private associational decisions, such as whom a business hired or served or where a person chose to live or to send their children to school.

As I have explained in various places, the civil rights regime is structured around two propositions: (1) diversity is our greatest constitutional good, and (2) discrimination is our greatest constitutional evil. This is in sharp tension with the foundational principles underlying the American Founding, such as limitations on federal authority and protections for various associational, expressive, and conscience rights. Accordingly, constitutional arguments seeking to uphold Founding-era principles will eventually run into the civil rights regime—which is a major problem for legal conservatives.

If There Is a Will…

Once we understand the Supreme Court’s operations in terms of political regimes adhering to particular constitutional moralities, we can see why the conservative legal movement, despite all its successes, has failed to restore American constitutionalism. Because the civil rights constitutional morality structures every feature of modern-day political affairs, all legal arguments—originalist and non-originalist, conservative and liberal alike—must conform to the civil rights regime’s pro-diversity and anti-discrimination axes.

Indeed, this is why the so-called New Federalism associated with the Rehnquist Court ended up failing. That court had to limit its many federalism and state sovereignty decisions so that they did not threaten the federal government’s regulation of local housing, public accommodations, and K-12 education under the civil rights regime. As a result, today there is essentially no effort to limit the federal government’s power.

Likewise, the Roberts Court’s originalism and religious-liberty jurisprudence, in operating within the civil rights morality, has been forced to carve out exceptions for precedents, programs, and practices central to that regime—leaving even its greatest accomplishments more formal than substantive.

Indeed, even though the Roberts Court has overruled the Lemon test, it is clear it will never reject Abington School District v. Schempp (1963), the school-prayer case that laid the foundation for the Lemon test. Nor will it ever touch Everson v. Board of Education (1947), the case that first incorporated the Establishment Clause to apply to the states. Although both Schempp and Everson are indisputably at odds with the original meaning of the Establishment Clause—whose sole purpose was to keep the federal government out of state religious affairs—the Roberts Court cannot permit state and local governments to have exclusionary and discriminatory religious practices without threatening the constitutional morality of the civil rights era. No matter how loudly and ostentatiously legal conservatives profess to stand for religious liberty and originalism, they are presently unwilling to travel down this path.

Conserving America

This fall, as we consider where the Supreme Court is and should be heading, we should begin to think more ambitiously and constructively. We should move beyond the strictures of legal conservatism that have confined the movement to particular precedents and narrow interpretive questions. We should learn from the legal scholars and activists who created the Lochner, New Deal, and civil rights eras, and think about how to develop a constitutional morality that reflects the larger project at stake of constitutional and, indeed, civilizational restoration.

This has radical implications for judicial nominations. For years, the conservative legal movement has treated judicial nominations as technocratic exercises, focusing on how to reconcile stare decisis and originalism or how to use originalism to justify this or that civil rights decision. An entire support structure—including professional networks, donor pathways, clerkship pipelines, and public-interest fellowships—has been built around training legal conservatives in the art of shadow-boxing legal liberalism with originalist formalities.

With the rise of Trump, however, the terms of American conservatism began to change. Trumpism revealed that vast segments of the electorate crave a politics and jurisprudence rooted in the defense of faith, family, and community against the elite-driven displacement of inherited forms of life and belonging. The Republican Party has, albeit clumsily, begun to learn the lesson: civilizational questions have returned to the center of American politics. Although this shift has been evident in some of Trump’s judicial nominations, the conservative legal movement as a whole still lags behind, trapped in strategies designed for a different country and a different time.

Even the civil rights skeptics on the Right—from institutional reformers like Gail Heriot to anti-woke polemicists like Richard Hanania—largely operate within the liberal ethos that created that regime. These skeptics may condemn the excesses of disparate-impact doctrine and the DEI bureaucracy, but they accept the progressive premise that the purpose of law is to manage the boundaries of inclusion and exclusion through the deployment of anti-discrimination norms, rather than to cultivate a shared moral and civilizational order grounded in a common inheritance. They may criticize particular judicial doctrines, but they do not question the constitutional morality that produced them.

The question now is whether the movement will adapt or calcify. Will we continue to vet judges based on their ability to engage in performative jousting over narrow interpretive questions? Or will the movement begin to think more critically and prospectively about civilizational stewardship—how lawyers and courts can serve not merely as guardians of rights, but as guardians of our social order?

The future of legal conservatism depends on whether the movement can break its own institutional habits and dare to articulate a new constitutional morality fit for the demographic and spiritual crises of our age—the crises of belonging, fertility, and meaning—and align jurisprudence with the task of civilizational renewal.

That is the fork in the road. Unless legal conservatism chooses the path of renewal—unless we begin to see law not merely as a mechanism for managing rights, but as something more: a framework for sustaining the fragile ecology of a nation—the movement may get everything it has sought while losing everything it needs.