The modern conservative judicial movement always had abortion and the reversal of Roe v Wade as its central empowering goal. Many intellectuals and activists had different political and goals. But those often esoteric and complex goals were never what powered the politics and the appointments. That was always abortion. When white evangelicals made their pact with the scofflaw libertine Trump, it wasn’t about “takings” or delegation or “originalism.” It was about abortion. So today represents a victory for the conservative judicial movement, later embodied in The Federalist Society, that was five decades in the making.
There are many observers who despise the results but yet still grant the legwork. There was a liberal Court that made all sorts of liberal decisions, the story goes. Conservatives didn’t like that. So they got organized and changed it. Liberals did it first and then conservatives did it.
But that story was never really quite right.
We should start by remembering that in the high watermark years of that “liberal” Warren Court in the late 1950s and early 1960s, the Court was dominated by five appointees of Dwight Eisenhower. There were three Roosevelt appointees and one Truman appointee. What’s more, a number of the outgoing Roosevelt justices and incoming Kennedy justices were actually more conservative than the Eisenhower appointees. Eisenhower famously said one of his great regrets was appointing Earl Warren. But then you have to deal with the four others, especially William Brennan, but also John Marshall Harlan II and even Potter Stewart.
Certainly the Warren Court was “liberal” by modern standards. But its creation was fundamentally organic. The justices’ positions didn’t clearly line up with those of the parties’ whose presidents nominated them. Indeed, many of the appointments were surprisingly casual and confirmed in much the same way. Brennan’s is a good example of this. Eisenhower picked him on the eve of a presidential election, apparently because he was Catholic and relatively young. He breezed through confirmation and turned out to be one of the most effective and most liberal justices of the century. There are libraries of commentary written about the Warren Court’s triumphs and shortcomings. But it was a product of the mid-20th century and post-war political consensus, which informed an elite consensus within and beyond the legal profession.
The idea that you would create a political movement, harnessed to one political party, dedicated to building up a pipeline of future judges and justices, often all but created in a test tube to overrule specific decisions, was an innovation of the modern conservative judicial movement with no precedent. It had never happened before. And even as judicial liberals have belatedly reacted to that movement, they haven’t replicated it or really even tried. Ruth Bader Ginsburg is the only modern Democratic appointee who was in any sense an activist or associated with a specific rights focus before joining the Court. Even in her case she wasn’t bred for the purpose or ensconced in anything like the right’s incubators of future judicial talent. Breyer, Kagan and Sotomayor are each liberals and have ruled more or less predictably on the Court. But none of them are bred-for-the-purpose ideologues like most recent Republican appointees.
And here is something of the catch. Conservatives really did convince themselves that the Warren Court and to an extent the Burger Court were the handiwork of a liberal political elite. As is the case in other instances, what’s actual belief or pretended belief gets murky. They claimed to set out to duplicate or create an opposite version of something that had never really existed. And in so doing they created the politicization of the federal judiciary that had never existed before, not in the same way.
The evolution of media over the same period provides an instructive parallel. Conservatives saw the national media of the ’60s and ’70s, decided it was liberal and began a long crusade both to force “balance” but also create their own “conservative” media. In a certain limited way they were right. Mid- and late-20th century broadcast media and prestige media was part of the post-War consensus which wasn’t so much liberal as cosmopolitan in its outlook. The default assumption that segregation in the South was on the wrong side of history was a defining one and likely the most important in perpetuating the “liberal” label. But the prestige media wasn’t the creation of Democratic operatives or created for any liberal purpose. And the extent to which it was “liberal” at all was quite limited. But none of that mattered. To the right, it was a machine dedicated to perpetuating liberal ideology, indeed, perpetuating and advancing the interests of the Democratic Party. With these claims it was no surprise that when the Right turned to creating their alternative media, embodied in Fox News, it lived up to this caricature: an avowedly ideological and partisan media operation literally run by Republican operatives in the interests of the Republican Party. In other words, a sort of Frankenstein’s monster of conservative complaints and paranoia.
In the current Court majority we have something very similar. A corrupted, Frankenstein’s monster creation. At one level, give them their due. They had a goal. They worked tirelessly for half a century, building organizations, think tanks, chapters at every law school, political alliances and more all to get to this one day. And they got there. But it is a legitimate Court or judicial body as much as Fox News is a real news organization. And that’s no accident since they are the creation of the same political movement, often literally the same people and the same ideology and mindset.
