In my lifetime, we have never had a better Supreme Court—and a worse legal culture.
As a pessimistic Boomer (and Big Law veteran) who channels Robert Bork, I regard the state of our politics in the MAGA era the same way Charles Dickens did in A Tale of Two Cities nearly two centuries ago: “It was the best of times, it was the worst of times.” I try to temper my gloominess about the current zeitgeist by aiming for a perspective somewhere between Pollyanna and Jeremiah.
Thanks to President Trump, the 6-to-3 originalist majority on the Supreme Court is the only thing standing between us and the abyss—a hellish combination of Deep State corruption, socialist economics, cultish wokeism, and cultural degeneracy. Yes, President Trump has over three years left in his second term, and is heroically trying to drain the swamp. But Congress is gridlocked, the midterms loom, and recent election results suggest the MAGA agenda is not as popular as Trump’s 2024 drubbing of Kamala Harris might indicate. She was, after all, the weakest Democratic candidate for president since Michael Dukakis in 1988. Unlike Trump in 2024, the Bush/Quayle ticket won an Electoral College landslide, and a majority of the popular vote. The nation is much more divided now.
Despite all of this, unlike my friend Jesse Merriam, I am encouraged by the state of the conservative legal movement—at least relative to the Left’s capture of so many other American institutions.
Merriam provides a partial roll call of favorable Supreme Court decisions issued in recent years, but omits other important victories. For example, Janus v. AFSCME (2018) disallowed the payment of compulsory agency fees to unions by non-consenting government employees, overturning Abood v. Detroit Board of Education (1977). U.S. v. Skrmetti (2025) rejected an equal protection challenge to a ban on “transgender” procedures for minors, allaying concerns over Justice Gorsuch’s misstep in Bostock. Other notable reversals are on the horizon, including Humphrey’s Executor v. United States (1935), which hamstrung the unitary executive, and possibly Griggs v. Duke Power Co. (1971), which ushered in the disastrous doctrine of disparate impact.
The Court will never be able to fix all the errors that have accumulated since it began to meet in 1790. Perfection is a utopian fantasy, especially in politics. For the first time in nearly a century, however, the Court is tacking in a conservative direction after decades of disappointment from feckless Republican-appointed justices. Recall that Roe v. Wade (1973) was a Burger Court decision written by a Nixon appointee. And Nixon was not alone in making bad Supreme Court appointments. William Brennan and Earl Warren were both nominated by Dwight David Eisenhower. The only solid conservative appointed by Nixon was William Rehnquist, who thereafter earned the title of “Lone Ranger” due to writing 52 solitary dissents. This was the extent of the conservative legal movement at the time.
Reagan disappointed with Sandra Day O’Connor and Anthony Kennedy, but scored bigly with Antonin Scalia. The elder Bush gave us David Souter—but also Clarence Thomas. Bush 43 absurdly nominated Harriet Miers before settling on the stalwart Samuel Alito. In short, the Supreme Court was often a mess before Donald Trump. And the resulting constitutional jurisprudence was an incoherent mélange of liberal pablum, a doctrinal wasteland. But not anymore.
A good deal of the credit for this must go to the Federalist Society, founded in 1982 (after I graduated from law school). I am a longtime FedSoc member and used to attend the National Lawyers Convention in Washington, D.C., each November until the event grew so big that it was unworkably large and lacked intimacy.
Even so, legal academia remains captured by the far-left, as is the ABA. Democratic leaders have vowed to pack the Supreme Court should they regain control of Congress. Most state bar associations, virtually all large law firms (in particular their robust “pro bono” programs), and the majority of lower federal court judges appointed by Obama and Biden (who are responsible for the judicial resistance to Trump 2.0 raging in many blue states and blue cities) are a testament to the Left’s still considerable power.
The “biggest enemies” of the conservative legal movement have not been “vanquished,” as Merriam asserts. They have merely been held at bay temporarily. We are still engaged in a perilous conflict with the Left.
When he assumed that Hillary Clinton would be elected in 2016, Harvard Law School professor Mark Tushnet, a Marxist who was hired when Justice Elena Kagan was dean, candidly revealed the Left’s blueprint for transforming the Court. In a post for the influential Balkinization blog entitled “Abandoning Defensive Crouch Liberal Constitutionalism,” Tushnet published a veritable Rules for (Legal) Radicals: the wholesale overruling of disfavored precedents, giving no quarter to the “losers” in the culture wars (that is, us), emulating the uber-activist Justices William Brennan and Thurgood Marshall, and so forth. Tushnet, writing in mid-2016, concluded his overconfident reverie with this note of warning: “Of course all bets are off if Donald Trump becomes President.”
The Left’s ruthless ambition remains unfulfilled. Given the caprice of the electorate, the Sword of Damocles dangles ominously every four years. Our current safety is fragile, and subject to the whims of politics. We live in fraught times.
I understand the griping that goes on in some circles on the Right about FedSoc being part of “Con, Inc.,” being preoccupied with legal minutiae instead of cultural issues, and favoring “establishment” candidates for Supreme Court appointments. I must admit to having indulged in some of this myself from time to time. However, no organization—or movement—is perfect. Some of the FedSoc’s clique of insiders were slow to get aboard the Trump Train. In 2016 some self-proclaimed “originalists” even endorsed Hillary Clinton. (Most of the signatories thankfully came to their senses later on.) The fact remains that FedSoc is the only countervailing force in a legal community overwhelmingly dominated by the Left. Despite its David vs. Goliath disadvantage, it has served as a battle flag around which center-right lawyers, law students, law professors, and judges can—and do—rally.
Critics may charge that FedSoc is just a “debating club” with no fixed “legal agenda,” to use Merriam’s words, and encompasses almost disparate factions on the Right (libertarians and social conservatives). True, but if the organization advocated specific policies, judges would be precluded by ethical rules from participating. FedSoc’s only agenda is restoring the rule of law envisioned by the American Founders.
FedSoc is not static, and the focus on debate creates a marketplace of ideas that winnows out the losers. In the past decade, various theories were advanced on the Right, given a platform by FedSoc, and disappeared for want of a following, such as right-on-crime (criminal justice reform), “judicial engagement” (libertarian judicial activism), and “common-good originalism,” which was motivated by the perception that “original” originalism had stalled. Of course, Dobbs and SFFA v. Harvard showed that patience has its virtues.
FedSoc is dynamic, just as conservative politics is dynamic. Tellingly, FedSoc increasingly showcases conservative talent from outside the Beltway. Fifth Circuit Judge Andrew Oldham, author of the epic 130-page dissent in W.M.M. v. Trump (an Alien Enemies Act case) that persuaded his court to grant rehearing en banc, delivered the 24th Annual Barbara K. Olson Memorial Lecture at this year’s FedSoc National Lawyers Convention. Similarly, MAGA-friendly South Texas College of Law professor Josh Blackman has supplanted familiar Acela corridor scholars as a leading legal commentator for both FedSoc and The Heritage Foundation.
The conservative legal movement is not monolithic, because the Right consists of a diverse assortment of factions with different points of view. This distinguishes us from the activists on the Left, who largely march in lockstep in their common quest for power and control. This is a strength of our movement.
The conservative legal movement, like conservative politics in general, continues to evolve due to shifting challenges, personalities, and circumstances. President Trump’s election in 2016 and re-election in 2024 will continue to alter the course of the Supreme Court for decades. The movement cannot be divorced from conservative politics in general. As Merriam has noted elsewhere, the conservative legal movement “must have in place a powerful electoral constituency,” that is, popular support. This means we face both political and cultural issues.
Has originalism become obsolete in 2025? Is Merriam right that it consists only of “technocratic exercises,” “performative jousting over narrow interpretive questions,” and “shadow-boxing legal liberalism”? Does originalism reflect a stagnant (or “calcified”) strategy “designed for a different country and a different time”? I don’t think so. Originalism is manifestly working. Courts are not legislatures. Per Federalist 78, they have “no influence over either the sword or the purse…and can take no active resolution whatever. [The judiciary] may truly be said to have neither FORCE nor WILL, but merely judgment.”
Jettisoning this limited role in lieu of becoming “guardians of our social order” and stewards of “civilizational restoration” would abandon the premises of our Constitution. It would create a “bevy of Platonic guardians” who would be indistinguishable from the left-wing judicial activists under the New Deal and the Warren and Burger courts, whose destructive handiwork we are in the process of undoing. Conservatives, unlike leftist apparatchiks, should honor the Constitution and the blessings of liberty it was designed to foster.
