Misrule of Law

In my lifetime, we have never had a better Supreme Court, or a worse culture.

This essay first appeared in The American Mind on December 2, 2025 as part of a symposium on the conservative legal movement (here). Thanks to Freedom Is Good (here) and Ilya Shapiro (here)!

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 that 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,” etc. I try to temper my gloominess about the current zeitgeist by aiming for a perspective somewhere between Pollyanna and Jeremiah. (My blog is titled Misrule of Law.) 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.

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 mid-terms loom, and recent election results suggest that the MAGA agenda is not as popular as Trump’s 2024 drubbing of Kamala Harris might suggest. She was, after all, the weakest Democratic candidate for President since Michael Dukakis in 1988. Unlike Trump in 2024, the Bush/Quayle ticket won in an Electoral College landslide and with a majority of the popular vote. The nation is much more divided now.  

Realistically, the “conservative legal movement” is in better shape than at any time in my life. Merriam provides a partial roll call of favorable Supreme Court precedents issued in recent years, but omits others. For example, Janus (2018) disallowed the payment of compulsory agency fees to unions by non-consenting government employees (overturning Abood), and 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 (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. Nixon was not alone in making bad appointments. William Brennan and Earl Warren were nominated by Eisenhower. The only solid conservative appointed by Nixon was William Rehnquist, who thereafter earned the title of  “Lone Ranger” on the Court by 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 as well as 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. 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 member of the Fed Soc and used to attend the National Lawyers Convention in Washington, D.C. each November until the event became so large that it was akin to an arena music concert. Legal academia has become captured by the far-left, as have the ABA, 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).

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.

Democratic leaders vow to pack the Court (among other radical proposals, such as granting statehood to D.C. and Puerto Rico), should they ever regain control of Congress. When he assumed that Hillary Clinton would be elected in 2016, Harvard Law School professor Mark Tushnet, a Marxist 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 laid out the left’s gameplan—a veritable Rules for (Legal) Radicals: the wholesale overruling of disfavored precedents, giving no quarter to the “losers” in the culture wars (i.e., us), emulating the uber-activist Justices William Brennan and Thurgood Marshall, and so forth. Tushnet, writing in mid-2016, concluded his over-confident reverie with “Of course all bets are off if Donald Trump becomes President.”

The left’s ruthless ambition remains unfulfilled, until the opportunity arises. 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 Fed Soc being part of “Con, Inc.,” being preoccupied with deposing the administrative state instead of cultural issues, favoring “establishment” candidates for Supreme Court appointments, etc. I must admit having indulged in some of this myself from time to time. No organization—or movement—is perfect. Some of the Fed Soc’s clique of insiders were slow to get aboard the Trump Train, and in 2016 some self-proclaimed “originalists” actually endorsed Hillary Clinton instead of Trump.  (Most of the signatories later came to their senses, unlike the National Review crowd.) The fact remains that Fed Soc is the only countervailing force in a legal community 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 Fed Soc is just a “debating club” with no fixed “legal agenda” (to use Merriam’s words), and encompasses different factions on the right (e.g., libertarians and social conservatives). True, but if the organization advocated specific policies, judges would be precluded by ethical rules from participating. Fed Soc’s only “agenda” is restoring the rule of law envisioned by the founders. Fed Soc 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 Fed Soc, and disappeared by themselves 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.

Fed Soc is dynamic, just as conservative politics is dynamic. Some Reagan era conservatives had to adjust to President Trump’s MAGA agenda (and some never did). Tellingly, Fed Soc 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 Fed Soc 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 Fed Soc 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 lock step in their common quest for power and control. This is a strength, not a weakness, for our movement. The conservative legal movement, like conservative politics in general, continues to evolve based on shifting challenges, personalities, and circumstances. President Trump’s election in 2016, and re-election in 2024, will significantly alter the course of the Supreme Court for decades.

The conservative legal 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,” i.e., popular support. This is a political and cultural issue.

Has originalism become obsolete in 2025? Does it consist 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, courts 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 and create a “bevy of Platonic guardians” indistinguishable from the left-wing judicial activists under the New Deal, Warren Court, and Burger Court 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.