The quiet intellectual push behind conservatives' court coup
If President Trump succeeds in replacing retiring Supreme Court Justice Anthony Kennedy with a stalwart conservative, thus creating a mostly-solid five-vote bloc on the Court, it will represent the culmination of a multi-decade effort by the conservative movement to reshape the American judiciary.
At a time when conservatives fret about the country slipping away from them, they should ponder this achievement and what lessons they can take from it.
Most people don't realize it, but this is an intellectual achievement. Sure, Republicans needed to win elections and fight appointment battles to have gotten to this point. They would never be in a position to get "their" Supreme Court pick through if they didn't control the Senate and the White House. But they also very much needed a deep pool of qualified judges, and that wouldn't have happened if those jurists hadn't been shaped by a robust and credible intellectual movement.
It's worth remembering that in the 1970s, when Roe v. Wade stunned conservatives and altered the shape of American politics forever, the doctrines of constitutional interpretation favored by conservatives, such as strict constructionism, originalism, and textualism, were basically completely ignored in the academy and in legal thinking.
When Antonin Scalia, lion of originalism, died in early 2016, eulogies focused on his inimitable writing style and his advocacy of originalism, while noting that originalism is still a minority view on the bench. True enough, but this missed the extent of originalism's influence. Though Scalia, because of his position on the Supreme Court and his unique eloquence, was the most visible advocate of originalism, he was merely the tip of the iceberg. And in the decades between Roe and now, originalism has become impossible to ignore. Non-originalist lawyers and judges now have to find some way to address originalist concerns. As a result, originalism's influence extends far beyond its niche of devotees.
This was accomplished, first and foremost, through intellectual leadership. Through organizations like the Federalist Society, which enabled young brilliant conservative jurists to network, get trained into the intellectual tradition, and then contribute to it, the conservative movement built an intellectual vanguard that was the necessary precondition of everything that followed.
This model, of intellectual leadership as the first step to policy success, used to be the blueprint for the great conservative successes of the '80s and '90s, such as supply-side economics, welfare reform, and school choice. These movements show that successful transformative political movements invest in intellectual leadership. It really has worked brilliantly in the courts. Conservatives have managed over decades to change the shape of the American judiciary and to shape jurisprudence in their direction.
I am sad to report, however, that today, this type of conservative intellectual leadership is largely gone. In policy area after policy area, conservatives do have very smart people, yes, but are on the wrong side of a "wonk gap" with the left.
What's more terrifying is that very few people on the right seem to think this is a problem.
Today the Republican Party has more political control of branches of government, at the federal and state levels, than at any point in recent history. And it doesn't seem to know what to do with it.
It's easy to blame President Trump. But this problem predates him. Witness the failure to replace ObamaCare: Long before Trump, conservatives had ceded intellectual leadership on health care. After years of bleating "Repeal and replace!" conservatives were like the dog that caught the car. They had no intellectually coherent policy to make good on the "replace" part of that promise.
The contrast between success in the judiciary and failure in areas such as health care shows that when conservatives invest in intellectual leadership, they can win. And if they don't, they lose. I wish they'd notice.