Servants of the Constitution

Published July 14, 2022

National Review

By overturning Roe v. Wade and Planned Parenthood v. Casey, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization marks a crowning achievement of the conservative legal movement. After nearly 50 years of judicial usurpation, Justice Samuel Alito’s masterly majority opinion restores abortion policy to the democratic processes. That achievement was decades in the making, and for most of that time seemed a pipe dream. As we celebrate this momentous victory, let’s reflect on how it happened.

The 1973 ruling in Roe was an epitome of lawless judicial decision-making. Harshly criticized even by supporters of abortion, Roe was a rambling opinion devoid of coherent legal analysis. It overrode the laws of all 50 states and imposed a radical regime of abortion on demand until viability (and, indeed, under the predominant reading of its post-viability “health” loophole — “to preserve the life or health of the mother” — all the way through pregnancy). 

Thirty years ago, in Planned Parenthood v. Casey, the Supreme Court had a golden opportunity to overturn Roe and was widely expected to do so. Instead, three justices whose presence on the Court owed much more to their political ties to the Republican Party than to any discernible principles of judicial conservatism combined to produce a joint majority opinion that was breathtaking in its grandiose misunderstanding of the Court’s role. Whether or not Roe was rightly decided, Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter instructed us, the Court had to reaffirm it in order to preserve the “legitimacy” of the Court and the people’s “very ability to see itself through its constitutional ideals.”

I was a law clerk for Justice Antonin Scalia (one of the four dissenters) when the Court botched Casey. After that, I had little hope that Roe would ever be overturned, and my doubts intensified over the next two years, when President Clinton appointed Ruth Bader Ginsburg to replace Justice Byron White, who had dissented in both Roe and Casey, and Stephen Breyer to replace Justice Harry Blackmun, the author of Roe. The Senate confirmed Ginsburg by a vote of 96–3 and Breyer 87–9. As Judiciary Committee counsel to Senator Orrin Hatch on both nominations, I saw how unwilling so many Republican senators were to fight a battle over judicial philosophy generally and over Roe in particular. 

But work begun during the Reagan administration was beginning to bear fruit. In reaction against the intellectual aimlessness of the Court during Chief Justice Warren Burger’s tenure (1969–86), a burgeoning conservative legal movement was forming. At the center of this new movement was the Federalist Society, a little-known organization of law students and lawyers founded in 1982. Edwin Meese, first as Ronald Reagan’s White House counsel and then as attorney general, boldly challenged conventional legal pieties and helped Reagan pick Scalia and Robert Bork first as appellate judges, then as Supreme Court nominees. Ironically, the stinging defeat of Bork’s nomination in 1987, after a campaign of calumny led by Joe Biden and Teddy Kennedy, turned “borking” into a “remember the Alamo” rallying cry for legal conservatives. 

This conservative legal movement coalesced around the twin concepts of originalism and textualism. Originalism arose in the constitutional context to counter the “living Constitution” approach and other freewheeling methods of inventing constitutional meaning. Textualism arose in the statutory context in response to purposivism and pragmatism, which appeal to a statute’s broad purposes or to notions of workability to trump the actual language of a statute. But despite the different labels, “originalism” and “textualism” describe essentially the same method: interpreting legal provisions — including, of course, constitutional amendments and statutory revisions — according to the meaning they bore when they were adopted.

The conservative legal movement flourished as Justice Scalia and Justice Clarence Thomas wrote powerful and entertaining opinions — too often, dissents — that confronted the lazy liberal orthodoxy and won the attention of new waves of law students. Law-school chapters of the Federalist Society fostered debate over contentious legal issues and challenged students to think through the fundamental questions of our constitutional system. Federalist Society students would go on to earn prestigious clerkships with outstanding conservative jurists, work in select legal positions in the White House or the Department of Justice (in Republican administrations) or on Capitol Hill, argue high-profile cases as state solicitors general, serve on state supreme courts, and themselves become federal judges and even Supreme Court justices.

Over time, the commonsense appeal of originalism and textualism, and the intellectual vacuity of the Left’s alternatives, also transformed the public debate over the role of the Court, mobilized the broader conservative political movement, and encouraged — indeed, compelled — Senate Republicans to fight for and against Supreme Court nominees on the ground of judicial philosophy. At their confirmation hearings, both of the justices Barack Obama selected, Sonia Sotomayor and Elena Kagan, emphatically rejected the notorious “empathy” standard that he had embraced (in deciding “difficult cases, the critical ingredient is supplied by what is in the judge’s heart,” Obama claimed), and Kagan famously, if evasively, declared that “we are all originalists.” In her confirmation testimony a few months ago, our newest justice, Ketanji Brown Jackson, likewise did her best to sound like an originalist.

Three episodes in the confirmation wars deserve special attention in tracing the path to Dobbs: the conservative revolt against George W. Bush’s nomination of Harriet Miers in 2005, Senator Mitch McConnell’s blockade of President Obama’s effort to fill the Scalia vacancy in 2016, and Senate Democrats’ filibuster of President Trump’s nomination of Neil Gorsuch in 2017.

Immediately on the heels of the Senate’s confirmation of John Roberts as chief justice, President Bush nominated Miers, his longtime personal lawyer and, for the prior year, his White House counsel, to fill the seat being vacated by O’Connor. The Miers nomination came not just as a surprise but as a gut punch. Miers had zero judicial experience, was a complete unknown to most legal conservatives, and had little in her record to suggest that she would be an outstanding justice with intellectual heft — the sort of justice who could, say, be expected to write a forceful opinion rejecting Roe. Conservatives had suppressed their doubts in 1990 when Bush’s father nominated Souter. But this time they rebelled. Twenty-four days later, Miers withdrew, and Bush nominated . . . Samuel Alito. 

The vacancy that arose from Justice Scalia’s death in February 2016 was the first one in 25 years for which a president of one party would be submitting a Supreme Court nomination to a Senate controlled by the opposing party. Plus, it arose in the year of a presidential election. As much as the Left would like to pretend otherwise, Senate majority leader Mitch McConnell’s decision to keep the vacancy open through the November 2016 election had basically been scripted for him — by Democrats. Way back in 1992, a Democratic chairman of the Senate Judiciary Committee, one Joe Biden, gave a lengthy statement on the Senate floor in which he warned President George H. W. Bush not to make a nomination if a Supreme Court vacancy arose in that election year. Similarly, Chuck Schumer earned enthusiastic applause from an audience of liberal lawyers when he declared in July 2007 — well over a year in advance of the 2008 election — that the Senate should not confirm another Supreme Court nomination by George W. Bush (“except in extraordinary circumstances”). Kathryn Ruemmler, Obama’s former White House counsel, candidly acknowledged that if the political roles had been reversed — that is, a Republican president and a Democratic majority in the Senate — she would have recommended that Senate Democrats take exactly the course that McConnell pursued.

Candidate Donald Trump’s vow to select his nominee for the Scalia vacancy from his public list of originalist candidates was a critical ingredient in his stunning victory over Hillary Clinton. That fact bears powerful witness to the political impact of legal conservatism, even as many members of the conservative legal movement (myself included) were tepid at best about the prospect of a Trump presidency.

In the annals of Supreme Court confirmation battles, no decision is likely to be seen as more obviously idiotic and consequential than Senate Democrats’ launch of a filibuster against President Trump’s nomination of Neil Gorsuch to the Scalia vacancy. 

Senate Democrats had initiated the filibuster — defeating the 60-vote threshold on cloture needed to move to a final vote — as a partisan weapon against George W. Bush’s appellate nominees in 2003. In 2005, Senate Republican leadership tried, but failed, to abolish the judicial filibuster, as seven Republicans, led by John McCain, jumped ship. But in 2013, after Republicans had used the filibuster fewer times against Obama’s nominees than Democrats had against Bush’s, Democratic leader Harry Reid succeeded in getting his majority to abolish it for lower-court nominees. Reid left the filibuster in place for Supreme Court nominees. Why? Because abortion-rights groups feared that abolishing it would make it easier for a Republican president to have a Republican-controlled Senate confirm the nomination of an anti-Roe justice. Far better, they urged, to wait to abolish the Supreme Court filibuster in order to confirm a Democratic president’s nominee. And just two weeks before the 2016 election, that’s exactly what Reid promised would happen if Republicans dared to filibuster President Hillary Clinton’s nominee for the Scalia vacancy.

In addition to being eminently qualified, Gorsuch had earned respect across ideological lines. By filibustering his nomination at the outset of the Trump presidency, Democrats made clear that they would filibuster any Trump nominee, and they thus gave McCain and other reluctant Republicans “no choice” (McCain’s words) but to vote to abolish the Supreme Court filibuster. Schumer and other Democrats knew at the time that what they were doing was very stupid, but their perfervid base insisted on it. 

Set aside delusions about Mitch McConnell’s supposed omnipotence in herding Republican senators. If the filibuster hadn’t been abolished during Gorsuch’s confirmation process, Brett Kavanaugh would never have been confirmed, and probably would never have been nominated, for Justice Kennedy’s vacancy in 2018. Nor would Senate Republicans have been able to confirm any conservative (much less Amy Coney Barrett) to replace Ruth Bader Ginsburg in the few months between her death in mid September 2020 and the end of the Senate’s session.

The conservative legal movement has endured lots of disappointing Supreme Court rulings since its inception 40 years ago, in nearly all instances for the simple reason that the Court did not have a genuine majority of judicial conservatives. Many legal observers hoped or feared that the chief justice in Dobbs would sway one or two of his conservative colleagues to join him in contriving a reason not to overturn Roe and Casey. But in the face of intense pressure that few armchair critics could withstand, the five justices in the majority stood strong. For their fidelity to the Constitution and for their courage, we owe them our deep gratitude and admiration.

Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.

Photo by Marie Bellando Mitjans on Unsplash

Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.

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