What the leaked draft opinion means for the legal conservative movement

WASHINGTON — In May 1987, Attorney General Edwin Meese III traveled to St. Louis and spoke to a group of clergy opposed to abortion. Denouncing Roe v. Wade, the 1973 Supreme Court ruling on abortion rights, he told them he saw reason to hope that “in our lifetime” he would be thrown on “the ash heap of the legal history”.

Thirty-five years later, a leaked draft opinion suggests the Supreme Court‘s conservative majority is poised to overturn Roe, allowing states to ban abortion. Liberals may be appalled, but for the conservative legal movement, of which Mr Meese was an early key figure, a long-awaited moment of triumph appears to be at hand.

“It will seem like a tremendous vindication for the conservative legal movement,” said Mary Ziegler, visiting professor at Harvard Law School and author of several books on the anti-abortion movement and legal policy. “The motion goes beyond Roe v. Wade, but rejecting it has become the concern of the motion and the test of its success.”

If the Supreme Court delivers a final opinion that looks very similar to the leaked draft, one question the timing will raise is what the conservative bloc will do next with its control over the judiciary. Already, for example, the court has decided to hear a case in its next term that will give it an opportunity to restrict race-based affirmative action in college admissions.

The libertarian faction within the movement wants to limit the power of the administrative state that grew in the New Deal, limiting the authority of regulatory agencies. The conservative cultural faction focuses on religious freedom and the scope and limits of the rights of lesbian, gay, bisexual or transgender Americans – including ongoing dissatisfaction with a 2015 ruling declaring a constitutional right to marriage homosexual.

Sen. Elizabeth Warren of Massachusetts was among Democratic lawmakers who feared the draft advisory could pave the way for other precedents to be overturned, citing the case that bars states from preventing same-sex couples from get married, etc.

“It’s appalling because it doesn’t just shake a little piece of Roe v. Wade,” Ms. Warren said. “It takes a pickaxe and in doing so it opens up the risk of losing a whole stack of other rights that we depend on.”

But there is a broad consensus that no issue has fueled the movement like abortion rights. Ed Whelan, a Justice Department attorney in the George W. Bush administration and a conservative legal commentator, said a long-sought victory could mark a turning point.

“If Roe is the glue that has held the conservative legal movement together, what happens when he no longer plays that role?” Mr. Whelan said. “What other priorities will unify the movement? I am not sure of the answer to this question.

The conservative legal movement grew out of the backlash of a string of liberal victories in Supreme Court rulings on a range of issues in the 1960s and 1970s. Conservative legal thinkers like future appellate court justice Robert H Bork began to argue that judges were usurping the role of legislators by interpreting the Constitution as a document whose meaning could change over time, and should instead interpret it strictly according to its original text and meaning.

The Liberals countered that this approach was a cover to advance Conservative policy preferences. But the conservative legal movement began to gain political momentum when elite legal thinkers merged their mission with cultural and religious conservative voters who wanted abortion illegal and were outraged by Roe v. Wade.

“The legal conservative movement happened for reasons that were distinctly separate from abortion, but what gives them power within the Republican Party is their connection to this big, highly mobilized coalition partner” – conservatives religious base, said Steven M. Teles, professor of political science at Johns Hopkins University and author of “The Rise of the Conservative Legal Movement: The Battle for Control of the Law.”

The movement took root in the 1980s. The Federalist Society – a network for legal conservatives – was founded on law school campuses and quickly expanded to chapters for practicing lawyers. And legal conservatives poured into the Reagan administration working for the likes of Mr. Meese, whose Justice Department became something of a think tank to develop ideas as an original approach to the Constitution.

The Reagan administration began trying to vet judicial nominees more on ideological grounds than under previous Republican presidencies, appointing several staunchly conservative jurists. This culminated in the battle over the failed Supreme Court nomination of Justice Bork – an outspoken critic of Roe v. Wade who Democrats and some Republicans in the Senate considered too extreme.

In their 12 years in office, the Reagan and George H.W. Bush administrations had five opportunities to appoint justices to the nine-member Supreme Court, raising the possibility that they could have installed a majority willing to overthrow Roe a while ago. a generation. But in a 1992 decision, Planned Parenthood v. Casey, the court instead reaffirmed a constitutional right to abortion.

The majority in this case included Reagan appointees like Sandra Day O’Connor and Anthony M. Kennedy and Bush appointee David H. Souter. They turned out not to be strictly conservative in the mold of others appointed around the same time like Justices Antonin Scalia and Clarence Thomas, both of whom wanted to overthrow Roe.

Calvin TerBeek, a University of Chicago political science graduate student who unearthed a copy of Mr Meese’s 1987 speech in St. Louis for his thesis, said the fallout from the case spurred the conservative legal movement to demand greater ideological verification.

“O’Connor, Kennedy and Souter were Republicans first, rather than conservatives first,” Mr. TerBeek said. “That’s why the conservative legal movement — especially places like the Federalist Society — has placed such importance on better predicting what a judge is going to do once they’re in court.”

Another milestone came in 2005, when the conservative legal movement helped defeat Mr. Bush’s bid to put Harriet Miers, his White House lawyer and associate from his Texas days, on the Supreme Court. Conservatives balked because she had no written record showing her commitment to issues important to the movement. The White House withdrew it and instead chose Samuel A. Alito Jr. – the author of the leaked draft notice.

During Barack Obama’s presidency, the Federalist Society continued to mature, effectively accrediting a growing group of movement conservatives awaiting the next Republican administration. Then, in 2016, judicial appointments took on considerable urgency when Justice Scalia died during a presidential campaign and Senate Republicans refused to hear from Mr. Obama’s nominee to fill the vacancy, the judge Merrick B. Garland, who is now the attorney general in the Biden administration. .

Meanwhile, Donald J. Trump was upsetting the Republican Party by crushing establishment figures in his primary. A New Yorker on his third marriage who once described himself as “very pro-choice”, Mr Trump was viewed with deep suspicion by many religiously-minded conservatives. But he struck a deal with the conservative legal movement to bolster Republican participation.

To allay concerns that he would pick idiosyncratic judicial candidates, like celebrity lawyers he’s seen on TV, Mr Trump has promised to make Supreme Court nominations from a list he has released. conservative judges. The list was devised by its chief legal adviser and future White House attorney, Donald F. McGahn II — a longtime member of the Federalist Society — working with advisers like Leonard Leo, then the group’s executive vice president.

Court-focused voters helped Mr. Trump’s Electoral College narrow victory over Hillary Clinton, exit polls showed. And aided by the scrapping of the Senate filibuster rule for judicial appointments, Mr. Trump has fulfilled his end of the bargain by nominating a series of conservative nominees from the movement, including three justices – Neil M. Gorsuch, Brett Mr. Kavanaugh and Amy Coney Barrett. All appear to have given preliminary approval to Roe’s overthrow, realizing the vision Mr Meese, now 90, presented to clergymen in 1987.

“I think the release of this list of names made it clear that Trump and his team really understood what the conservative legal movement was doing,” said Carrie Severino, president of the Judicial Crisis Network, which argues for the judges’ confirmation. conservatives.

“The judgment of many conservatives – that this next president will have a great impact on the direction of the courts via their nominees – has been confirmed by seeing that these justices are exceptional and committed to the original understanding of the Constitution,” she continued. “You couldn’t get a starker contrast to the kind of person Hillary Clinton would have put on the court – we wouldn’t be having this conversation today.”

Emily Cochrane contributed report.

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