The Nation is witnessing the determined delegitimization of both its Federal and State judiciaries and the systematic dismantling of its system of justice and Rule of Law by a single man – the former President of the United States.
— @judgeluttig (@judgeluttig) March 29, 2024
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Ultimately, however, it is the responsibility of the entire nation to protect its courts and judges, its Constitution, its Rule of Law, and America’s Democracy from vicious attack, threat, undermine, and deliberate delegitimization at the hands of anyone so determined.
— @judgeluttig (@judgeluttig) March 29, 2024
This article is written by a conservative, and I vehemently disagree with a bit of it, but I think it’s an important article.
The Conservative Legal Movement Got Everything It Wanted. It Could Lose It All.
The conservative legal movement took shape in the wreckage of the Nixon administration. As America faces the prospect of a second Trump administration, it faces an existential test.
Richard Nixon—neither a conservative nor a constitutionalist—had the opportunity to reshape the judiciary, with four Supreme Court vacancies occurring during his term. Yet a shambolic process and limited judicial vision yielded multiple failed nominations. And one of the justices he did appoint—Harry Blackmun—wrote the opinion in Roe v. Wade, which established a national abortion policy with little legal justification.
The case demonstrated, conservatives argued, that the court had begun to act like a legislature, subverting the careful constitutional design of separation of powers. The drift of the judiciary into policymaking threatened the rule of law and frustrated America’s promise of self-government.
Against the backdrop of Roe v. Wade and the Watergate scandal, which drove Nixon from office and Republicans to a historic minority in Congress—allowing Jimmy Carter to push the courts even further left—the conservative legal movement began to take shape. Students at leading law schools founded the Federalist Society in 1982. It would become the flagship of legal conservatism, standing for the proposition that “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” A constellation of other libertarian and conservative legal organizations, centers, and advocacy groups followed. And Reagan-era Attorney General Edwin Meese helped popularize the understanding of “originalism” and the related idea of “textualism,” doctrines holding that laws, including the Constitution, have knowable meaning and should be interpreted according to the ordinary public understanding at the time of enactment.
By 2016, the conservative legal movement could congratulate itself on remarkable success. Its ideas now influenced the law, the academy, and even popular discourse. Republican candidates increasingly self-identified as “constitutional conservatives.” Constitutionalism animated Tea Party rhetoric and the priorities of the Republican majority during the Obama administration.
Then Justice Antonin Scalia, the intellectual champion of the conservative legal movement for decades, died unexpectedly in February of that year. He left a divided Supreme Court with a historic vacancy in an election year and decades of advances for the legal conservatives in jeopardy of washing away.
Into this moment descended Donald Trump—neither a conservative nor a constitutionalist. A former Democrat and Bill Clinton supporter, with a curious history of praising authoritarians and an unsteady relationship with both truth and the law, seemed ill-fit to the moment. Pressed on his conservative bona fides, Trump replied acidly: “Don’t forget, this is called the Republican Party, it’s not called the Conservative Party.” His rallies featured increasingly illiberal rhetoric and signature chants calling for the imprisonment of Hillary Clinton.