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Thanks to Donald Trump’s presidential term, the conservative legal movement has been able to realize some of its wildest dreams: overturning the constitutional right to an abortion, ending affirmative action in college admissions, and potentially making most state-level firearm restrictions presumptively unconstitutional. That movement long predates Trump, and these goals were long-standing. But, like the rest of conservatism, much of the conservative legal movement has also been remade in Trump’s vulgar, authoritarian image, and is now preparing to go further, in an endeavor to shield both Trump and the Republican Party from democratic accountability.
The federal judiciary has become a battleground in a right-wing culture war that aims to turn back the clock to a time when conservative mores—around gender, sexuality, race—were unchallenged and, in some respects, unchallengeable. Many of the federal judges appointed during Trump’s presidency seem to see themselves as foot soldiers in that war, which they view as a crusade to restore the original meaning of the Constitution. Yet in practice, their rulings have proved to be little more than Trump-era right-wing punditry with cherry-picked historical citations.
The 2016 Trump administration was focused on quickly filling the judiciary with judges who are not just ideologically conservative but dedicated right-wing zealots. But that administration “didn’t have all of the chess pieces completely lined up” to get right-wing ideologues into every open seat, Jake Faleschini, of the liberal legal-advocacy group Alliance for Justice, told me. More restrained conservative jurists filled some of those seats. Trump and his allies will be better prepared next time, he said. “Those chess pieces are very well lined up now.”
The federal district judge Matthew Kacsmaryk, a former anti-abortion activist, is the prototypical Trumpist judge. He has publicly complained about the sexual revolution, no-fault divorce, “very permissive policies on contraception,” and marriage equality, and has opposed nondiscrimination protections for the LGBTQ community. And like many of his Trump-appointed peers, Kacsmaryk has predictably issued rulings flouting precedent when doing so is consistent with his personal morals.
One of the most egregious examples came in September, when he dismissed a lawsuit filed by students at West Texas A&M University after the school’s president, Walter Wendler, banned a drag-show benefit aimed at raising money for the Trevor Project, an LGBTQ-focused suicide-prevention organization. Wendler made clear his political objections to the show, referring to drag as “derisive, divisive and demoralizing misogyny.” But even Wendler himself recognized that the show, as expressive conduct, was protected speech; amazingly, he admitted that he was violating the law. He would not be seen to condone the behavior of the show’s actors, Wendler wrote in his message banning the event, “even when the law of the land appears to require it.”
The case landed on Kacsmaryk’s desk. And because Kacsmaryk does not like pro-LGBTQ speech, he simply ignored decades of precedent regarding free-speech law on the grounds that, by his understanding of history, the First Amendment does not protect campus drag shows. The drag show “does not obviously convey or communicate a discernable, protectable message,” Kacsmaryk wrote, and consists of potentially “vulgar and lewd” conduct that could, he suggested, lead to “the sexual exploitation and abuse of children.” (The confidence with which conservatives have accused their political opponents of child sexual exploitation in recent years is remarkable, especially because their concern applies almost exclusively to situations, like this one, that justify legal suppression of their favored targets. It is far easier to find examples of pedophilia in religious institutions—hardly targets of either conservative ire or conservative jurisprudence—than it is to find drag queens guilty of similar conduct.)
The key to Kacsmaryk’s ruling was “historical analysis,” which revealed a “Free Speech ecosystem drastically different from the ‘expressive conduct’ absolutism” of those challenging Wendler’s decision. Echoing the Supreme Court’s recent emphasis on “history and tradition” in rulings such as Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to an abortion, and New York State Rifle & Pistol Association, Inc. v. Bruen, which struck down gun restrictions in New York State, Kacsmaryk simply decided that the First Amendment did not apply. If not for its censorious implications, the ruling would be an amusing example of some conservative beliefs about free speech: A certain form of expression can be banned as “nonpolitical”—nothing more than obscenity—even as those banning it acknowledge their disapproval of that expression’s political implications.
The invocation of “history and tradition,” however, is no joke. The prevailing mode of conservative constitutional analysis for the past half century has been “originalism,” which promises to interpret the Constitution as it was understood at the time of its writing. As the dissenters pointed out in Dobbs, the Founders themselves imposed no such requirements on constitutional interpretation, noting that the “Framers defined rights in general terms, to permit future evolution in their scope and meaning.” And in practice, originalism has just meant invoking the Framers to justify conservative outcomes.
“It’s a very subjective inquiry,” the NYU law professor Melissa Murray told me. “This insistence on originalism as history and tradition ties you to a jurisprudence that’s going to favor a particular, masculine kind of ideology. Because those are the only people making meaning at that moment in time.”
In 1986, the late conservative legal scholar Philip B. Kurland observed, “We cannot definitively read the minds of the Founders except, usually, to create a choice of several possible meanings for the necessarily recondite language that appears in much of our charter of government. Indeed, evidence of different meanings likely can be garnered for almost every disputable proposition.”
“History should provide the perimeters within which the choice of meaning may be made,” Kurland wrote. “History ordinarily should not be expected, however, to provide specific answers to the specific problems that bedevil the Court.”
Right-wing justices have in all but name imposed this expectation, despite Kurland’s warning. It is no surprise that Kurland was not heeded—he testified against the nomination of Robert Bork, the father of originalism, to the Supreme Court, and cautioned that “he will be an aggressive judge in conforming the Constitution to his notions of what it should be,” one “directed to a diminution of minority and individual rights.” Now, with six Republican appointees on the Supreme Court, every judge is slowly being forced to conform the Constitution to Bork’s notions of what it should be.
In Dobbs and Bruen, and in a later case striking down race-based affirmative action in college admissions, the conservative justices cited historical facts that strengthened their arguments while ignoring those that contradicted them, even when the evidence to the contrary was voluminous. In Dobbs, Justice Samuel Alito, who wrote the majority opinion, ignored the history of legal abortion in the early American republic and the sexist animus behind the 19th-century campaigns to ban it. In Bruen, Justice Clarence Thomas was happy to invoke the history of personal gun ownership but dismissed the parallel history of firearm regulation. In the affirmative-action case, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Thomas’s imposition of modern right-wing standards of “color blindness” on the debate over the Fourteenth Amendment was ahistorical enough that it drew an objection from Eric Foner, the greatest living historian of the Reconstruction era.
Not every right-wing judge is as blatantly ideological in their decision making as Kacsmaryk, nor is every Republican appointee a Trumpist zealot. But those with ambitions to rise up the ranks stand out by how aggressively they advertise both qualities. And the proliferation of the language of “history and tradition” is turning originalism from an ideology of constitutional interpretation into something more like a legal requirement. Judges are expected to do historical analysis—not rigorous analysis, but the kind that a prime-time Fox News host will agree with. Conservative originalists seem to see themselves as the true heirs of the Founders, and therefore when they examine the Founders, they can see only themselves, as if looking in a mirror.
It is no coincidence that as conservatism has become Trumpism, originalism has come to resemble Trumpist nationalism in its view that conservatives are the only legitimate Americans and therefore the only ones who should be allowed to wield power. The results for the federal judiciary are apparent as right-wing appeals courts turn “fringe ideas into law at a breakneck pace,” as the legal reporter Chris Geidner has put it, in the hopes of teeing up cases for the Roberts Court, which can hide its own extremism behind the occasional refusal to cater to the most extreme demands of its movement allies.
It is not only the substance of the rulings that has changed—many now resemble bad blog posts in their selective evidence, motivated reasoning, overt partisanship, and recitation of personal grievances—but the behavior of the jurists, who seek to turn public-service roles into minor celebrity by acting like social-media influencers.
Fifth Circuit Judge James Ho, a favorite of the conservative legal movement and a potential future Trump Supreme Court nominee, is one example. In 2022, Ho announced that he was striking a blow against “cancel culture” by boycotting law clerks from Yale after an incident in which Yale students disrupted an event featuring an attorney from a Christian-right legal-advocacy group. In 2021, the Trump-appointed judge Barbara Lagoa complained publicly that American society had grown so “Orwellian” that “I’m not sure I can call myself a woman anymore.” She later upheld an Alabama law making gender-affirming care for minors a felony, arguing, of course, that such care was not rooted in American “history and tradition.” In June 2023, in the midst of a scandal over Justice Thomas receiving unreported gifts from right-wing billionaires with interests before the Court, the Trump-appointed judge Amul Thapar went on Fox News to promote his book about Thomas, and defended him with the zeal of a columnist for Breitbart News.
During Joe Biden’s presidency, the appointment of far-right ideologues has meant a series of extreme rulings that have upheld speech restrictions and book bans; forced the administration to pursue the right’s preferred restrictive immigration policies; narrowed the fundamental rights of women, the LGBTQ community, and ethnic minorities; blessed law-enforcement misconduct; restricted voting rights; limited the ability of federal agencies to regulate corporations; and helped businesses exploit their workers.
All of this and more will continue should Trump win a second term. Conservative civil servants who placed their oath to the Constitution above Trump’s attempt to overturn the 2020 election were depicted by Trump loyalists not as heroes but as internal enemies to be purged. Republican-appointed judges will take note of which path leads to professional advancement and which to early retirement.
Already imitating Trump in affect and ideology, these judges are indeed unlikely to resist just about any of Trump’s efforts to concentrate power in himself. They will no doubt invoke “history and tradition” to justify this project, but their eyes are ultimately on a future utopia where conservative political power cannot be meaningfully challenged at the ballot box or in court.
This article appears in the January/February 2024 print edition with the headline “A MAGA Judiciary.”
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Adam Serwer
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