Comment: Supreme Court’s conservative stance in sharper focus

By Noah Feldman / Bloomberg Opinion

The Supreme Court’s conservative judicial revolution is taking on a recognizable, three-pronged structure.

On big-ticket, hot button issues, like abortion and affirmative action, the court blows precedent out of the water and replaces it with a ruling that the conservative legal movement has been demanding for half a century.

On major Democratic initiatives, like climate policy and President Biden’s student loan forgiveness program, the court blocks executive action using Chief Justice John Roberts’ brainchild, the major questions doctrine.

In the third category, the revolution takes a breather as each of President Trump’s three appointees gets the chance to emphasize a specific legal issue he or she cares about. Roberts and the court’s three liberals provide the rest of the votes. The result is a reasonable ruling that avoids major doctrinal upheaval; and doesn’t undermine the rest of the revolution.

Examples of this third category include the court’s rejection of the scary-dangerous independent legislature theory (driven by Justice Brett Kavanaugh’s interest in protecting elections); the restoration of Biden’s immigration powers (driven by Justice Amy Coney Barrett’s Scalian interest in protecting standing); and upholding the Indian Child Welfare Act (driven at least partly by Justice Neil Gorsuch’s sincere concern for the sovereignty of Native American tribes).

Some observers might think these category-three cases show Roberts’ moderating influence. They don’t. In these cases, Roberts is no more powerful than the liberals. In these cases, one of the Trump appointees always provides the decisive fifth vote.

Of course, this conservative judicial revolution wouldn’t be happening if Trump had lost the 2016 election. No Trump, no reversal of Roe v. Wade; no ending of affirmative action; no reversals on LGBTQ rights, gun safety or the separation of church and state.

But the real roots of this jurisprudential revolution long pre-date Trump’s presidency. The judicial radicalism we see on the court now is the product of the roughly 50-year-old conservative legal movement. And that movement was founded specifically in reaction to liberal Supreme Court victories.

The movement, which began in the 1970s, has mostly focused on overturning landmark decisions made by the Burger court in the 1970s; primarily Roe (abortion), Bakke (affirmative action) and Lemon v. Kurtzman (religion).

Inspired by the example of Justices William Rehnquist and Antonin Scalia, movement conservatives made judicial appointments into an important aspect of their political program. The success of the effort culminated in the appointments of Gorsuch, Kavanaugh and Barrett, products of that movement.

For them, it would be bizarre to be the on the court, have the majority, and not execute the revolutionary program that has informed their entire legal education: overturning the constitutional right to abortion, letting Christian prayers back into public schools, and ending affirmative action.

As for the court’s approach to Democratic executive branch initiatives, it can be at least partly attributed to the sea change in judicial thinking caused by Trump’s presidency. Remember that, when Trump was president, liberals called enthusiastically for the courts to step in and overturn Trump’s legally outrageous initiatives. By calling for judges to reverse Trump’s decisions on the exclusion of undocumented people from the census, the Muslim immigration ban, threats to sanctuary cities, the unfunded border wall and more, liberals helped set public expectations for the court to check the president.

Roberts, long an advocate of judicial restraint, especially with respect to the executive branch, underwent a personal journey of transformation in the face of Trump’s lawlessness. At first, in the Muslim immigration ban case, he tried to get Trump to be reasonable. When Trump took Roberts’ accomodationism as weakness, Roberts reversed course and became a key figure in overturning Trump’s initiatives.

But Roberts’ achievement in standing up to Trump had consequences. It led him to develop the ideas behind the major questions doctrine. The point of the doctrine, which roughly says that the court will block the executive from doing something really big and really novel unless Congress has clearly authorized it, is to constrain aggressive, outside-the-box executive action. I don’t believe Roberts would have created the doctrine without his experience fighting Trump’s unprecedented behavior.

Now, of course, the doctrine lets the conservative majority reverse bold Democratic executive action. But Roberts’ activist-contra-the-president mode was honed during the chaos of the Trump years.

Finally, the varying interests of the three Trump appointees, which can fuel reasonable outcomes in the midst of the revolutionary maelstrom, can be attributed to the intellectual culture of the Federalist Society. That group’s goal was to create conservative legal intellectuals and get them on the courts. To be a conservative legal intellectual you need, or rather used to need, a set of jurisprudential principles. Gorsuch, Barrett and Kavanaugh each had a set of these; and each still does. They care about these principles and will deploy them to create what they consider logically coherent jurisprudence. At the same time, few or none of these principles will interfere with prongs one and two of the revolution.

To test my theory, you can ask in any future case: Where does it fall in the three-fold framework? The answer should give you the outcome.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”