Despite this, his role in Bostock largely shocked and angered the conservative legal movement. Justice Scalia would be disappointed that his successor has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards, Carrie Severino, the president of the Judicial Crisis Network, said after the Bostock ruling. This was not judging, this was legislatinga brute force attack on our constitutional system. Her organization is a key player in the right-wing judicial-confirmation juggernaut, and most of its budget comes from anonymous six- and seven-figure donations. JCN reportedly spent $10 million to back Gorsuchs confirmation. Presumably, these donors care less about the technicalities of textualism than the results to which the philosophy leads, which usually line up with conservative political causes.

As I noted at the time, the ruling in Bostock ruptured the basic pact between social conservatives and the Republican Party over the past few decades. In exchange for large-scale electoral and political support, GOP candidates were supposed to defend religious liberty and stand athwart the sexual revolutionor at least install judicial nominees who would do it for them. Many of them used the Supreme Court vacancy caused by Antonin Scalias death to justify their support for Donald Trump in 2016. Then they saw the nominee who filled that vacancy write one of the most sweeping judicial victories for LGBTQ rights in American history.

This decision, and the majority who wrote it, represents the end of something, Missouri Senator Josh Hawley said in a floor speech after Bostock came down. It represents the end of the conservative legal movement, or the conservative legal project, as we know it. After Bostock, that effort, as it has existed up to now, is over. I say this because if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach such a decisionan outcome that fundamentally changes the scope and meaning and application of statutory lawthen textualism and originalism and all of those phrases dont mean much at all.

His comments reflect a deeper divide on the right about the future of the movement. A medley of right-wing figures like Hawley, New York Post columnist Sohrab Ahmari, and Harvard University law professor Adrian Vermeule have argued that conservatives should embrace illiberalism to reverse their defeats in the culture wars. Their many critics, such asNational Reviews David French, note that this strategy makes little sense when the American public largely disagrees with them, their grip on the apparatus of state may be fleeting, and their abandonment of liberalism is more likely to backfire than succeed.

Fueling this debate was Chief Justice John Roberts, who resumed his old role as a spoiler for would-be conservative victories this term. He sided with the courts liberals in June Medical Services v. Russo to strike down a Louisiana law that would have closed all but one of the states abortion clinics. In Department of Homeland Security v. Regents of the University of California, he made the same alliance to quash the Trump administrations efforts to rescind the DACA program. Many court-watchers believe he is part of the reason why the court has largely avoided Second Amendment cases for the past decade, though the courts votes on accepting and declining cases usually arent public.

A recurring theme in right-wing criticism of Roberts is that hes guided not by the law, but by complaints from liberal politicians and legal commentators. It is all too apparent that Roberts can be cowed by the Democrats frequent and noisy threats to pack the courts or otherwise poison their credibility and legitimacy with the public, National Reviews Dan McLaughlin wrote last month. By caving to such threats, he only invites more of them. This criticism, whether intentionally or not, often ends up adopting the same attacks on the courts legitimacy that it claims to abhor. And its not liberals who are out of sync with the public on abortion rights, Dreamers, and LGBTQ rights.

Fears of Roberts turning to the center, to say nothing of being liberal, are still overblown. He is a conservative justice, Jonathan Adler, a Case Western Reserve University law professor, wrote last week, but more than anything else, he is a judicial minimalist who seeks to avoid sweeping decisions with disruptive effects. As Adler notes, this does not explain all of Robertss rulings over the years. The chief justice infamously wrote the majority opinion in Shelby County v. Holder, which struck down a key Voting Rights Act provision and opened the door to a wave of voter suppression across the South. (This was the capstone on Robertsslong career of working to undermine the VRA, which began when he was a lawyer in the Reagan Department of Justice.) He can be willing to move mountains if it will structurally tilt American democracy in Republicans favor.

But Robertss judicial minimalism works well as a general rule, especially after this term. The chief justice found himself outside the majority in only a handful of the major cases this term. In Ramos v. Louisiana, he joined Justice Samuel Alitos dissent from a ruling that required unanimous jury verdicts to find a defendant guilty. That ruling, Alito complained, imposes a potentially crushing burden on the courts and criminal justice systems in two states that had used non-unanimous jury verdicts to convict defendants. And in McGirt, the Muscogee (Creek) Nation ruling, Roberts warned that the majoritys ruling had profoundly destabilized the governance of eastern Oklahoma. (It did not.)

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The Strategic Blunders of the Conservative Legal Movement - The New Republic