The Court’s Conservative Constitutional Revolution

In just a little over a year, the Supreme Court has gutted the right to abortion, outlawed affirmative action in higher education, and thrown out the entire body of doctrine protecting the separation of church and state. These decisions—as well as others concerning free speech, the free exercise of religion, and the courts’ power to overturn important environmental regulations—mark a judicial revolution in constitutional law: an era-defining rewriting of basic rules and principles in the light of an ideology championed by the Court’s six conservative justices, three of whom were appointed by Donald Trump.

This conservative constitutional revolution at the Court is ongoing, but it has reached the end of its beginning. Now it feels possible to identify its structure and strategy. This is an essential step in predicting where it will go next—and in formulating an appropriate liberal response.

The Court launched this revolution by reversing a series of precedents that date back to the Burger Court (1969–1986). These were not, to be clear, grand pronouncements on fundamental rights of the kind favored by the Warren Court (1953–1969). They were compromise rulings, characterized by pragmatic accommodation of conflicting judicial positions.

These Burger Court decisions—on abortion (Roe v. Wade, 1973), affirmative action (Regents of the University of California v. Bakke, 1978), separation of religion and government (Lemon v. Kurtzman, 1971), campaign finance (Buckley v. Valeo, 1976), and beyond—emerged from a Court more evenly divided than today’s. The Burger Court’s liberals wanted to extend progressive values further than the Warren Court had, and conservatives wanted to curtail or reverse that extension. No one in the judiciary or the legal academy much loved those compromises. They typically featured tortured logic and sometimes verged on incoherence. But they nonetheless provided the building blocks of constitutional law for nearly a quarter of our nation’s history.

Today’s constitutional revolution proceeds by taking the views expressed in the conservative dissents in these Burger Court cases and making them law. What we are seeing is revolution by hit list, a hit list created by the conservative legal movement and particularly by the Federalist Society, founded in 1982 to put smart young conservative lawyers into a pipeline leading to the judiciary. The justices who came to the Court through this pipeline—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—know what decisions to reverse but often lack a clear sense of what legal regime should replace them.

This problem is clearly visible in the case of affirmative action, which has left real uncertainty about the criteria universities may use when evaluating applications. It is more salient still when it comes to the separation of church and state. In the landmark Kennedy v. Bremerton School District (2022) decision, the Court failed to articulate any meaningful test to replace the old ones it trashed, instead suggesting vaguely that “history and tradition” should guide interpretation of the establishment clause going forward.

Once the remaining items on the to-do list have been crossed off, however, the conservative majority of the Court is going to find itself at a crossroads. The most extreme legal conservatives (Justices Clarence Thomas, Samuel Alito, and sometimes Gorsuch) will push for even more radical decisions that implement not constitutional conservatism so much as political outcomes sought by conservatives. They would like to weaken the courts’ supervisory authority over elections and voting rights even more than has already been done, to exempt religious groups from complying with civil rights laws, and to dismantle as much of the modern administrative state as possible by holding that Congress cannot constitutionally delegate lawmaking power to executive-branch agencies.

Those efforts have already been met with mild skepticism by the very-conservative-but-perhaps-not-entirely-off-the-deep-end justices like Chief Justice John Roberts, Kavanaugh, and sometimes Barrett. These conservatives are committed to checking off the items on the inherited hit list, but they do not want to upend the entire edifice of constitutional law. In short, they want a revolution, not a descent into doctrinal anarchy. Which faction prevails, and to what degree, will have major implications for the future of our constitutional democracy.

As the Burger Court precedents are being dismantled, it is important to note that the most prominent Warren Court decisions, though they were denounced by earlier generations of legal conservatives, have remained almost untouched by the current Court. Brown v. Board of Education (1954) looks as strong today as it ever has, even if its meaning was subject to renewed debate in last term’s affirmative action case, Students for Fair Admissions v. Harvard. Miranda warnings have entered the firmament of apparently unchangeable constitutional law. Even Warren Court decisions that undergirded now-overturned Burger Court rulings remain intact. No one, for example, seriously thinks that the current conservative majority will overturn Griswold v. Connecticut (1965), the Warren Court decision that established a fundamental right to contraception, even though Roe v. Wade, now reversed, cited Griswold as its most immediate precedent.

Why is this activist conservative Court targeting the pragmatist, compromising Burger Court while preserving the Warren Court’s liberal revolution? The answer is not entirely obvious. One reason may be that constitutional revolution at the Supreme Court tends to focus on decisions of the last-but-one judicial generation, going back roughly fifty years, not ones that seem to belong to the distant past. The hit list, in other words, is ordinarily created by justices who endured defeat, registered dissents, and trained their law clerks and other followers to hate those cases, not older ones. The revolution happens when that younger generation gets five votes on the Court. For example, the FDR Court (1938–1953) engaged in what could be considered judicial constitutional revolution by overturning the core jurisprudence of the libertarian, property-protecting Lochner era (1897–1937). It thereby enabled progressive legislation passed at both state and federal levels to survive judicial review. This reflected the generational motivation of FDR’s liberal justices, such as Felix Frankfurter and William O. Douglas, who had been influenced by critiques of the Lochner-era Court made by Justices Oliver Wendell Holmes and Louis Brandeis.¹

Another reason may be that the poor legal reasoning of the Burger Court compromises (a feature of the fact that they were compromises) made them vulnerable to being overturned. Roe v. Wade acknowledged a tension between a woman’s right to choose and the state’s interests in protecting the fetus, then attempted to address the tension through a trimester framework that had no basis in existing constitutional doctrine (and was abandoned by the Supreme Court in Planned Parenthood v. Casey in 1992). As Ruth Bader Ginsburg and others noted, Roe also grounded the right to abortion in the privacy of the relationship between a pregnant person and a physician rather than in equal protection for women, a choice that might have made sense as a doctrinal compromise but that weakened the jurisprudential argument for the decision.

The Bakke decision struck down in the Students for Fair Admissions case is another study in weak compromise. Four justices in Bakke thought race-based affirmative action in higher education should be permitted as remediation for a history of slavery, racism, and segregation. Four thought affirmative action should be unlawful because it treats people of different races differently. Under the circumstances of the 4–4 split, the opinion that ended up as the law, written by Justice Lewis Powell and joined in full by no other justice, tried to split the difference. It permitted affirmative action as a means to achieve educational diversity—a rationale that had never previously been advanced by its advocates. Even though Powell’s Bakke opinion was upheld twenty-five years later by a bare majority of the Court in Grutter v. Bollinger (2003), it always suffered from the mismatch between its justification for affirmative action and the reasons the practice had been adopted in the first place.

One could list more Burger Court compromises resting on weak logical foundations that have been struck down. Buckley v. Valeo held that spending money on election campaigns was an exercise of free speech protected by the First Amendment. But it somehow distinguished expenditure of a candidate’s own money, which could not be limited, from campaign contributions, which could. Although Buckley was killed by a thousand cuts rather than struck down in one (Roberts’s preferred method for crossing cases off the hit list), its doctrinal demise is every bit as much a part of the conservative revolution as the headline-grabbing abortion and affirmative action cases.

If this theory of vulnerability based on compromise logic is correct, it may also explain why the current conservative majority does not appear poised to overturn the decision that established the right to gay marriage, Obergefell v. Hodges (2015). Whatever the logical merits of that decision, Gorsuch gave it retrospective weight in his Title VII workplace discrimination decision, Bostock v. Clayton County (2020), by adopting a formalist view of sex discrimination, according to which it is unlawful to treat someone differently based on sex. Obergefell may be protected by that same logic: if a woman may marry a man, a man should be permitted to marry that same man. Decisions that can stand up to a certain formalist attack may have a better chance of survival given that the conservative revolutionaries all consider themselves legal formalists to one degree or another.

In the new Supreme Court term that begins in October, the conservatives’ most immediate target is Chevron v. Natural Resources Defense Council (1984), a classically flimsy, quasi-constitutional Burger Court compromise decision that granted administrative agencies broad leeway to interpret federal laws. The Court will hear oral arguments in a case that asks it to overrule Chevron. The most important real-world stakes relate to the ease with which judges can overturn environmental regulations.

When the Constitution of 1787 was proposed and ratified, there were no administrative agencies in the modern sense. Under its tripartite system of government, legislatures passed laws, courts interpreted them, and the executive branch implemented them. But with the rise of the modern administrative state beginning in the 1930s and the creation of powerful regulatory agencies such as the Environmental Protection Agency, which was established in 1970, many such agencies came to be seen as part of a partially independent fourth branch of government. Congress assigned authority to those agencies in broad statutory terms, and the agencies in turn used their expertise to interpret the often ambiguous laws passed by Congress. This gave them powers that might once have belonged to the legislature or the judiciary.

The Chevron decision held that if a statute is ambiguous, courts should defer to the relevant agency’s interpretation of the law, provided that it is “reasonable.” The resulting doctrine, known as Chevron deference, was a compromise between the ultimate power of the courts to interpret the law and the value of agency expertise in deciding important policy questions on issues like the environment.²

This compromise decision, written by Justice John Paul Stevens (Gerald Ford’s nominee and at the time a moderate), garnered a unanimous vote, unlike the decisions in Roe and Bakke. Yet from the standpoint of legal logic, Chevron deference never had much to recommend it. If you think the judiciary has the constitutional responsibility to say what the law is, it makes little sense to grant that responsibility to agencies when the law is ambiguous. Conversely, if enabling agency expertise is the goal, why allow courts to overrule an agency simply by asserting that a given statute is clear or not ambiguous or that the agency’s interpretation is unreasonable? In practice, however, Chevron deference has mostly worked like a successful compromise should, affording substantial leeway to agencies seeking to protect the environment or to regulate drug safety.

So basic did Chevron deference become to the operation of administrative agencies that the late Justice Antonin Scalia, the leading formalist of his time and a former professor of administrative law, set out to articulate a formal justification for it in a 1989 lecture. Scalia’s magic-bullet solution to the illogic of Chevron deference was to say that Congress intended the courts to defer to agencies whenever it passed an ambiguous statute.

This was a legal fiction: Congress plainly intended no such thing. It was proposed by a justice who hated legal fictions and made a fetish of doctrinal coherence. Yet Scalia’s views, and his legacy, will be front and center when the conservative justices decide whether to overrule Chevron and, if so, what doctrine to put in its place.

Thomas, Alito, and Gorsuch have all expressed hostility toward the administrative state; they view it as a deviation from the pure tripartite faith of the Framers. All claim to respect Scalia’s legacy. But they can point to several highly nondeferential decisions in statutory-interpretation cases written by Scalia toward the end of his judicial career to argue that he was reconsidering Chevron before his death.

Roberts, who dislikes directly overturning important precedents, won’t want to overrule Chevron. In any case, he has already invented and implemented the so-called major questions doctrine, under which the Court presumes that Congress did not delegate responsibility for big, novel policy decisions to agencies—even in areas squarely within the agencies’ expertise. Roberts’s workaround allows the Court to avoid having to defer to agencies when it considers their decisions too new or too major. Kavanaugh, who served for twelve years on the US Court of Appeals for the D.C. Circuit, where most appellate administrative law is conducted, may also be disinclined to overturn Chevron, a mainstay of his old court’s business model.

As for Barrett, who clerked for Scalia and is committed to preserving his teachings wherever possible, she may also prefer not to repudiate an important precedent that he embraced. She understands, perhaps better than the other justices, that Scalia always found Chevron acceptable because it gave courts the option of overriding agencies by declaring the statute in question clear and the agencies’ interpretations unreasonable. So the conservative attack on Chevron deference may well fall short, limiting the reach of the revolution and thwarting one avenue of its assault on the administrative state.

The conservative Court has thus far been successful in reversing Burger Court compromises. Once it runs out of such cases to overturn, however, it may discover the need for some doctrinal compromises of its own.

Consider the conservative desire to ensure religious exemptions from civil rights laws. The conservatives achieved a partial victory on this issue in June when the Court ruled in 303 Creative v. Elenis that a Web designer had a right based on the freedom of speech not to make wedding websites for gay couples. But that decision is limited to cases of what the Court called “pure speech” and does not extend to nonexpressive businesses that do not wish to serve customers whom the owners’ religion excoriates. A full-throated exemptions regime, based on the free exercise clause, would enable businesses that assert a religious orientation to discriminate openly based on race, sexuality, and gender. While Alito and Gorsuch seem prepared for that result, other conservatives may not relish the prospect of a decision that would permit the reemergence of, for example, racially segregated restaurants and hotels.

To avoid that result, the conservatives would have to craft a compromise that allows some degree of religious exemption without giving a blank check to racist or homophobic businesses to say their discrimination is religiously motivated and hence constitutionally protected. Barrett has hinted at such a possibility in an oblique concurring opinion in Fulton v. Philadelphia (2021). The details remain to be worked out, and a coalition willing to adopt such a compromise would have to be found.

Apart from crafting compromises, the conservative majority will find itself repeatedly asked to reach decisions that satisfy the conservative political movement. Perhaps a few justices will be prepared to serve as rubber stamps for its goals. But the ethos of Supreme Court justices, even revolutionary conservatives, demands jurisprudence that goes beyond simple expedience. That is the lesson of the Court’s decision last term, in Moore v. Harper, to reject the so-called independent state legislature theory by a vote of 6–3. Roberts, Kavanaugh, and Barrett refused to embrace the terrifying consequences that would have resulted from holding that state legislatures could violate their own state constitutions when it comes to federal elections.

We can expect, then, that the conservative constitutional revolution will become an internal struggle between the extremely radical and the merely radical. At the same time, the Court will continue to act aggressively against liberal regulatory initiatives emanating from the executive branch.

This raises the crucial question of the appropriate liberal response to the conservative revolution. Trump’s three appointees are in their fifties. Roberts is sixty-eight, Alito seventy-three, and Thomas seventy-five. The only foreseeable route to a liberal majority is for two of these conservatives to retire or die while a Democratic president is in office and Democrats control the Senate. Since Sonia Sotomayor is sixty-nine, Elena Kagan sixty-three, and Ketanji Brown Jackson fifty-three, we might then get the stable liberal majority that was imaginable during Barack Obama’s presidency, before the twin disasters of Mitch McConnell blocking Merrick Garland’s nomination and Ruth Bader Ginsburg’s death in office during Trump’s term.

It would be a serious error for liberals to reject or abandon the Court during its present conservative dispensation. It has been more than a hundred years—closer to 125—since judicial activism became our national norm. Libertarian conservatives, not liberals, initiated it. Since then, however, liberals have won more important fights at the Court than they have lost, among them desegregation; one person, one vote; sexual freedom; gay marriage; and trans rights against workplace discrimination. All are products of judicial activism. The most important conservative constitutional decisions of the post–World War II period have largely consisted of limiting or reversing liberal precedents.

Liberals can and should criticize the mistakes of conservative decisions. That is a necessary step toward reversing them when liberals have a majority on the Court again. But they should not indulge in hyperbolic criticism that undermines the very institution over which they should be trying to regain control. In an essay with the salutary goal of blunting some of the most extreme current left-liberal rejectionism, my colleague Laurence H. Tribe, a historic figure in the fight to maintain a liberal court, recently wrote in these pages that “we have never seen a Court so blatantly determined to move the nation in an ideologically predetermined direction without being even slightly constrained by law or logic.”³ This is too much of a concession to those who think the Court’s current conservatism discredits the institution. Today’s conservative revolution is very wrong, but it is not worse than the libertarian Lochner revolution that systematically thwarted most health, safety, and wage and hour legislation at the state and federal levels for decades. And it borders on the indefensible to say that this Court is more ideological or lawless than the one that adopted the separate-but-equal doctrine of Plessy v. Ferguson, betraying the Fourteenth Amendment’s promise of equal protection.

Instead, liberals should focus on preparing the next liberal constitutional revolution for the day when they have the votes to bring it about. The reality that there is no true liberal equivalent of the Federalist Society (the American Constitution Society is a well-meaning but inadequate effort) can be explained by the laudable fact that liberals don’t care much for lockstep ideology and collective self-policing. Yet liberals have mostly failed to do what the Federalist Society does best: getting activist, intellectually creative judges into a pipeline that leads to the Supreme Court. Too many of Obama’s appellate appointees, and Biden’s, are moderates with little taste for the warfare that is constitutional jurisprudence at the Court.

Liberal votes aren’t enough. We need liberal ideals, powerfully stated, like Jackson’s extraordinary dissent in Students for Fair Admissions, in which she calmly laid out the historical effects of slavery, segregation, and racist social policy on Black well-being. (This provoked an unhinged, ad feminam response from Thomas.)

Liberals should also articulate reasons why commonsense legal logic supports the restoration, maintenance, and extension of liberal rights and values. Broad exemptions from civil rights laws do not protect liberty. They vitiate the principle of equality—and liberals must say so. The administrative state, for all its flaws, is the way our society avoids control by corporations, another core liberal principle with vital application to environmental regulation. Trans rights are a logical extension of our right to equal self-determination. The right to abortion inheres in the equality of all persons, not just in privacy, as Ginsburg long ago intimated. When it is reinstated, as it eventually will be, it must be placed on a footing that will endure because its logic is unassailable, based on a combination of autonomy and equality.

Judicial revolution is a sword that cuts both ways. Liberals must keep their own blade honed for the moment it may be wielded again. It is all well and good to beat your swords into plowshares—once the messianic age is upon you and the lion lies down with the lamb. Until then, liberals must fight hard for control of the Supreme Court, which, like it or not, is one of the most important institutions in our form of constitutional government.