Conservative judges are rolling back rights with trickery

Americans have witnessed something remarkable unfolding in the judicial system in recent years: Conservative jurists seemingly bent on taking away—as opposed to preserving or expanding—rights from abortion to affirmative action enjoyed by the American public. Many of these rights are being methodically erased in lengthy, complex judicial opinions that the vast majority of citizens will never read. These rights are being whittled away in the shadows by judges whose names they do not know, and spun into unrecognizable forms by specious threads of reasoning that most do not understand. The results, however, can have real, often devastating consequences to their lives.

This transformation is deliberate. It’s the desired byproduct of a concerted, far-reaching strategy by the political right to achieve unfair and unpopular goals, spanning social, cultural, and economic sectors—goals that the right cannot achieve through the ballot box. Operating through the institutional mechanism of lifetime appointments which cannot be reversed, this political bastardization of the judiciary—most particularly at the federal level—by a virulent and reactionary “movement conservatism” is approaching its apotheosis. It now openly ignores its own precedents in favor of exalting paeans to “originalism”—and most recently, “history” and “tradition.” These amount to opportunistic exercises in cherry-picking, designed to achieve the results conservatives want, rather than what the law and modern society plainly demand. 

It is a strategy that subordinates and sacrifices the legitimacy and public confidence in the judiciary to the cynical fulfillment of parochial, political ends. Occasionally it reveals itself in embarrassing public demonstrations of judicial arrogance, as its practitioners flaunt their allegiance to it, explicitly dangling their biases in front of a public whom they believe have no means of recourse. 

It’s a strategy mostly created to serve the country’s ultra-rich, who have carefully planned for decades to achieve their goals of cementing into law a continuous spigot of multi-generational wealth. It also incorporates and allies itself, when necessary, with the theocratic fever dreams of the nation’s religious right, to whom it owes an electoral debt.   

But none of this is occurring for the good of the American public. Rather, it’s intended to serve the needs and desires of a tiny minority at the expense of the rest of the country. If ordinary Americans are going to do anything about it, it’s important for them first to understand exactly what is happening, and why every Supreme Court term now seems to bring a new set of reactionary edicts geared to upend and diminish Americans’ lives.

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Emily Bazelon is a staff writer for the New York Times. Her recent focus has been the markedly “rightward lurch” by the U.S. Supreme Court, particularly the Trump-ridden conservative majority that has held sway over the past two years. In an article for the Times’ magazine, Bazelon examines how a newly contrived judicial reliance on this country’s purported “history and traditions” has swiftly become “the legal standard [that] has been recently adopted by the court’s conservative majority to allow judges to set aside modern developments in the law to restore the precedents of the distant past.”

The most glaring and well-known example of this is Justice Samuel Alito’s opinion in the Dobbs case. He contrived rationale to overturn a half-century’s worth of jurisprudence that established the right to abortion under principles of personal liberty and privacy derived from the 14th Amendment. As Bazelon notes, Alito had to tread carefully since his aim was “to topple the right to abortion and only that right.” 

Alito’s method, as Bazelon illustrates, was to cherry-pick from the long history of abortion in this country to reach his pre-ordained conclusion that the Roe decision was “egregiously wrong.” Bazelon notes that in doing so, Alito disregarded a lot of history in the process, such as the “historical” fact that prohibitions against abortion before Roe times had occurred almost entirely after 15-18 weeks in pregnancy (after “quickening”), a distinction which Roe itself maintained to some degree. She notes Alito also disregarded the fact that in early American law abortion was not even recognized in circumstances prior to that stage. Further, that historically abortion only became an issue of public debate in cases where harm to the woman—not the fetus—had occurred. Alito also ignored even more uncomfortable “history” that showed abortion rights not only were permitted, but expanded, by states both before and after the Roe decision.

Bazelon—and other legal scholars—note that this new focus on “history and tradition” has come about quite suddenly, and highlighted such in three major Supreme Court opinions released during the same month in 2022. These decisions ended the constitutional right to abortion, invalidated gun restrictions, and selectively expanded so-called “religious freedoms” of right-wing Christians to proselytize in public school settings. Not coincidentally, all of these are hot-button issues for the political right. As one UCLA law professor cited by Bazelon noted on X (the platform formerly known as Twitter), the court’s newfound jurisprudence seems to contend that “if men in power didn’t recognize this right as fundamental in ye olde times, we won’t recognize it now.”

Taking their cue from the Supreme Court, other right-wing judges have adopted similar selective interpretations of history in order to pursue a conservative agenda. Bazelon notes that Texas district judge Matthew Kacsmaryk in 2023 cited the Supreme Court’s “history and tradition” methodology with approval when he upheld the right of a university to prohibit an inoffensive “drag” show by referencing “an 18th-century treatise describing the government’s power to censure ‘licentiousness’ and a 19th-century ban on mailing ‘lascivious’ materials.” 

Importantly, as Bazelon points out, this focus on historical precedents to justify current rollbacks of established rights represents a sharp deviation from the way historical analysis has traditionally been employed by the judiciary. That focus tended to rely on history as a guide, and not a determinative factor, in applying the law in a modern context. But right-wing jurisprudence—led by the Supreme Court—has now embraced “history” and “tradition” as a means to justify its ends, without acknowledging that, for them, only one outcome is acceptable. It’s a focus that deliberately disregards modern context in favor of dredging up past values and applying them to the present-day, in order to validate and justify a conservative result.

Bazelon cites the Texas Law Review article by Reva Siegel article that puts this into perspective:

The history-and-traditions framework is a claim on constitutional memory, a memory game that rationalizes the exercise of power. It functions to conceal rather than to constrain discretion. On this view, Justices who disdain living constitutionalism and values-based constitutional interpretation turn to the past to vindicate values that they do not wish openly to endorse. On this view, originalism employs constitutional memory games to justify normative ends the Justices refuse to own as their own.

As Bazelon’s article shows, the values that these right-wing judges “do not wish to openly endorse” now disproportionately favor right-wing groups and their pet causes: abortion, guns, and anti-LGBTQ+ discrimination are the most recent examples. As Siegel emphasizes in a forthcoming analysis of this trend, these types of judicial “memory games” are really efforts to hide the fact of their agenda from Americans who lack the expertise to call them out. She notes that the only instances where these historical exercises are used appear to be instances where the court is intent on changing the law from what it actually is to what conservatives want it to be. 

Nor is this cherry-picking limited to historical facts alone. Jeffrey Toobin, writing for the New York Review of Books demonstrates how “the Fifth Circuit and other conservative judges have resurrected or invented a series of doctrines—from nondelegation in the 1930s to “major questions” in the 2020s—in an attempt to cripple the administrative state.” “Crippling the administrative state,” means reversing environmental protections, ending labor protections, and gutting anti-discrimination programs intended to serve all Americans, particularly those economically disadvantaged citizens most commonly subjected to this country’s long history of racism. That’s why many of the Supreme Court’s recent actions are rightly seen as putting discrete, vulnerable segments of the American public (people with life-threatening pregnancies, LGBTQ+ individuals, and historically discriminated-against minorities, for example) in the crosshairs. They are the people the right wing cares the least about, and thus the ones whose existing rights make the most convenient targets.

All of these efforts to resurrect and repackage stale legal doctrines and archaic facts are calculated to alter existing law and replace it with conservative, hard-right doctrine. But unlike its close cousin “originalism” (a one-time fringe theory, massaged over decades into mainstream jurisprudence) focusing broadly on the nation’s so-called “history and traditions” opens up new areas for that doctrine to flourish. All it takes is cherry-picking to find the right historical antecedents to roll back any existing law that bothers conservatives, as if the nation’s progress itself must be forever ossified, tethered to a static and unchangeable past.

For any Americans who aren’t contemplated under this nefarious power scheme (and that’s exactly what it is), the only option under our constitutional system is to replace these judges with more progressive-minded jurists who understand that the law can and must adapt to the fact that we live in the 21st, and not the 19th, century. The only way to do that is by reelecting Joe Biden—who will nominate those judges—and electing a Democratic Senate to confirm them. Otherwise, thanks to these conservative judges, the law in this country will continue to go backward, dragging Americans back right along with it.

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