“What do we mean by conservatism?” American Enterprise Institute Fellow Steven Hayward asked a 2005 Princeton conference titled “The Conservative Movement: Its Past, Present, and Future.” Rick Perlstein records that Hayward quoted conservative philosopher Russell Kirk: “belief in a transcendant moral order.” Conservatives, he said, “defend the unchanging ground of our changing experience.”
Yet, conservatives’ commitment to a transcenant moral order and unchanging principles has proved remarkably fluid. Perlstein went on to cite something Richard Nixon once told a new staffer, “Flexibility is the first principle of politics.” There’s the truth of it.
Flexibility, or rather, shiftiness, is the conservative métier seventeen years later. After America elected a Black president followed by an emotionally damaged, white-nationalist, career criminal.
E.J. Dionne teases out a 2000 quote from a prominent U.S. senator condemning the “imperial judiciary”:
He argued that the “judicial activism” that liberals were regularly accused of was standard operating procedure for the right: “It is now conservative judges who are supplanting the judgment of the people’s representatives and substituting their own for that of the Congress and the president.”
“What is at issue here,” Sen. Joe Biden told the Senate, “is the question of power, who wants it, who has it, and who controls it.”
With the retirement of Justice Stephen G. Breyer, Republicans decry President Biden’s commitment to elevating a Black woman to the Supreme Court as an affirmative action pick.
Dahlia Lithwick and Mark Joseph Stern coment at Slate that, “in a neat bit of gaslighting,” they are laying the groundwork to claim for decades to come that Biden’s pick is inferior and that Biden and his supporters “are the real racists.” They did it with Justice Sonia Sotomayor:
In truth, presidents had long nominated judges—and Supreme Court justices in particular—on the basis of demographics. President Dwight Eisenhower nominated Justice William Brennan because he was Catholic, and the White House believed he needed to shore up support among Catholics. The GOP’s revered President Ronald Reagan campaigned on naming the first woman to the Supreme Court; he followed through with Justice Sandra O’Connor, who was openly selected because of her sex. (By today’s standards, O’Connor—a judge on Arizona’s intermediate court of appeals—was underqualified.) Reagan picked Justice Antonin Scalia because he was Italian American. As White House counsel Peter Wallison later recalled, Reagan wanted a justice of Italian “extraction,” explaining, “We don’t have an Italian American on the court, so we ought to have one.”
All of these nominations took place before the conservative legal movement coalesced around a pernicious myth: Any time a Democratic president chooses a non-white-man for the Supreme Court, that nominee is inherently suspect—a presumptive unqualified beneficiary of affirmative action until proven otherwise. This toxic ideology emerged when President Barack Obama put forward Justice Sonia Sotomayor in 2009. Ilya Shapiro, a conservative lawyer and commentator who will soon teach at Georgetown University Law Center, smeared her as a blatant affirmative action pick. In a notorious CNN article published at the time of her nomination, he wrote that Sotomayor “would not have even been on the short list if she were not Hispanic. She is not one of the leading lights of the federal judiciary.” Obama never said he wanted a Latina for the spot, but Shapiro nevertheless deduced that she was selected on the basis of her race and gender. He could not believe Obama would nominate a Latina due to her accomplishments alone.
The smear did not end with her confirmation. For the entire time she has been on the bench, Sotomayor—who graduated summa cum laude and Phi Beta Kappa from Princeton—has been derided as a dim bulb affirmative action pick. Conservative commentators accuse her of stupidity and ignorance for making uncontroversial points that could only upset a bad faith pedant. She exists in a space that has no equivalent for a white man on the Supreme Court. She must earn the respect of conservative commentators every single day on the job.
And so it goes. When it was time for Republicans to replace Ruth Bader Ginsburg, Trump “nominated Justice Amy Coney Barrett because she was a woman and a mother of young children.” Suddenly, her pick “was principled commitment to diversity.”
Conservatives’ committment, argues Ian Millhiser at Vox, is to control, with Barrett’s addition teeing up “a Christian conservative revolution.” In Millhiser’s accounting, SCOTUS now gives “religious liberty” cases the highest priority, transforming itself “into a forum to hear the grievances of religious conservatives. And the Supreme Court is rapidly changing the rules of the game to benefit those conservatives.”
Millhiser writes:
The Court also started frequently using the shadow docket to hand down highly consequential decisions well before Barrett joined the Court. Justice Sonia Sotomayor warned that the Court was using shadow docket cases to grant “extraordinary” favors to Trump as recently as 2019.
But there’s no doubt that the Court’s new majority is eager to break things and move quickly. Ordinarily, for example, if the Court were going to fundamentally rethink its approach to an important provision of the Constitution, it would insist upon full briefing, conduct an oral argument, and spend months deliberating over any proposed changes. Instead, Roman Catholic Diocese was handed down less than a month after the Court had the votes it needed to rewrite its approach to the free exercise clause.
There are also worrisome signs that the Court’s new majority cares much less than its predecessors about stare decisis, the doctrine that courts should typically follow past precedents. Just look at how the Court has treated Roe v. Wade if you want a particularly glaring example of the new majority’s approach to precedents it does not like.
In its fight over religion, the court holds little regard for established law, contends Millhiser. “That means that a whole lot is likely to change, and very quickly.”
Unchanging ground, indeed. Flexibility is more like it.