The implications of that view for the rule of law are stark. They amount to asking Lady Justice to remove her blindfold, to rule based not on the law but on who the parties are. Perhaps it was Chief Justice John Roberts in his own confirmation hearings in 2005 who stated the other side most succinctly, if metaphorically, when he likened the role of a judge to that of an umpire calling balls and strikes by the rules of the game. The rules of our game are set most generally, of course, by the U.S. Constitution.
For more than a century, progressives have read that document largely as “living,” as an empty vessel to be filled by transient majorities or, when the people get it wrong ideologically, by executive branch agencies or the courts. Conservatives, by contrast, have seen the document as rich in content, initially as a brake on majoritarianism, later as a font of majoritarianism, and more recently as a subtle mix of the two. I submit that the key to what is going on with Trump’s judicial appointments may be found in that conservative evolution. To see that, however, we need a brief overview of constitutional theory and history by way of context, focusing on the role of the courts.
From Liberty to Leviathan — and Back?
Drawing on the Declaration of Independence’s natural rights theory, the Constitution sought to secure the rule of law and limit the scope of politics by instituting a limited government, its law and structural limits policed by politics, but if needed by the courts. The Civil War amendments — as a matter of law, at least, practice aside — corrected the document’s cardinal sin, its oblique recognition of slavery, by providing federal checks on the states, especially through the 14th Amendment’s privileges or immunities clause.
But late in the 19th century, progressives began emerging from the elite schools of the Northeast to challenge that political order. Social engineers inspired by the new social sciences, they thought they could order our lives through statutory law better than we ourselves could under the common law. Planners all, their spirit was captured late in the era, in 1932, by Rexford Tugwell, soon to become one of the principal architects of the New Deal: “fundamental changes of attitude,” he wrote, “new disciplines, revised legal structures, unaccustomed limitations on activity, are all necessary if we are to plan. This amounts, in fact, to the abandonment, finally, of laissez faire. It amounts, practically, to the abolition of ‘business.’ ”1
Standing athwart that agenda, of course, was the “Old Court,” famously in 1905, and rightly too, in Lochner v. New York, though unevenly over the next three decades. But following President Franklin Roosevelt’s infamous court‐packing threat soon after his 1936 landslide reelection, the court began effectively rewriting the Constitution, eviscerating the crucial enumerated powers doctrine in 1937, bifurcating the Bill of Rights while crafting a bifurcated theory of judicial review in 1938, and jettisoning the nondelegation doctrine in 1943. The modern executive state was thus born.
It was Tugwell again, 30 years later, who best captured the constitutional point: “To the extent that these [New Deal policies] developed, they were tortured interpretations of a document intended to prevent them.“2 They knew exactly what they were doing: replacing the law of limited government with the politics of effectively unlimited government.
With that, the course was set for today. What followed was a cowed, deferential court. But that gave way in the mid‐1950s to a more active court — and not a moment too soon, especially concerning civil rights and criminal procedure. In addition to finding rights long overdue to be found, however, the court found others nowhere to be found, even among our unenumerated rights pursuant to the Ninth Amendment. That led to a backlash among conservatives who had been all but eclipsed by the New Deal juggernaut but were now slowly reemerging and organizing.
An important moment as that process was unfolding was the publication in 1962 of Alexander Bickel’s “The Least Dangerous Branch,” which spotlighted the court’s “countermajoritarian difficulty” and commended the “passive virtues” for judges. Robert Bork would later credit his Yale Law colleague Bickel for much of his own constitutional thinking, and for good reason: Reaching back to the judicial deference that had characterized the court in the immediate aftermath of its New Deal constitutional revolution, Bickel had articulated principles that underpinned the emerging conservative “judicial restraint” school and would continue to do so for decades to come.3
But in reaching back, conservatives didn’t simply adopt the deferential posture of the New Deal court. They went after the Old Court too, joining liberals in condemning the Lochner Era. That left them, ironically, in an altogether untenable position, for as a policy matter, conservatives had long stood for limited, fiscally responsible government.
Yet in the name of majoritarian democracy, they now had effectively disarmed the court, denying it the power to check the political branches as provided for by the Constitution. Their misreading of the document meant that governmental powers and programs would continue to grow beyond anything remotely authorized by the Constitution, programs that in time would drive the nation, states, and cities toward bankruptcy, as we’re seeing today with apparently uncontrollable public spending.
There things stood when Bork came before the Senate Judiciary Committee in 1987 for the first of what would be a series of stormy confirmation hearings that continue to this day. Since Bork would be replacing Justice Lewis Powell on the Supreme Court, seen as a swing vote on social issues, the long knives were out, no more infamously captured than in the outrageous caricature of Bork’s views by Sen. Ted Kennedy, D‐Mass.4 But that set the tone for several of the hearings that have followed, particularly for Republican nominees.5
Their tactics aside, progressive liberals were understandably concerned. With the prospect of Bork sitting on the court, they saw their half‐century hold over our third branch of government coming to an end. And that fear has animated them ever since. What they have too little noticed, however, is shifts that have slowly taken place on the other side, and that will bring us to what may be going on with the Trump appointments.
From the time it began reemerging after World War II, into a world dominated by post‐New Deal liberalism, the conservative movement has included various conservatives and classical liberals or libertarians, “various” being the operative word. That made for an uneasy coalition at times, including in the movement’s legal and constitutional reaches where the proper role of the courts came often to divide members. Conservatives in the Bickel and Bork mold made their peace with the demise of enumerated powers, seeing it as a lost cause.
Their focus instead was on what they saw as liberal judicial activism over rights. Fearing rights activism, they urged judges to secure only those rights that were clearly in the Constitution. Thus, only on the rights side, not on powers, for the most part, did they differ from modern liberals who were urging judges to find rights consistent with their “living,” evolving political agenda, whether constitutionally cognizable or not, and to deny or disparage rights inconsistent with that agenda — property rights and economic liberties, for example.
Such were things by the mid‐1970s when a tiny vanguard of those of us on the classical liberal or libertarian side of the movement said, “a pox on both your houses.” Thus, we began slowly to develop the theoretical foundations for a third school of thought that would eventually be called judicial engagement. We urged judges, when practical, to revive the doctrine of enumerated powers, to police the administrative state, and to secure those rights we retained when we instituted government, enumerated and unenumerated alike, as derived from the theory of natural rights that stands behind and informs the Constitution as corrected by the Civil War amendments, not the version that emerged from the New Deal court’s political legerdemain.6
This third school initially occupied only a small corner of the larger conservative movement. But as that movement grew, so too did its institutions: think tanks like The Heritage Foundation and the Cato Institute came on the scene; free‐market public‐interest law groups like the Pacific Legal Foundation and the Institute for Justice were created; and, most important for our purposes, in 1982 a small band of ideologically isolated conservative and libertarian law students at Yale and the University of Chicago created the Federalist Society.
Today, the Federalist Society comprises some 70,000 members, student chapters in nearly every law school in the country, lawyer chapters in many cities, and a faculty division. Yet it’s still often embattled in the larger legal world, including in many law schools where student chapters sometimes have difficulty finding a faculty member willing to sponsor the chapter. All of which brings us back to the Trump administration and its judicial appointments.
The List and its Implications
On April 2, 2016, Trump, by then the presumptive Republican presidential nominee, told The Washington Post that he planned “to announce a list of 10 or 12 judges from which he would pick to fill vacancies on the Supreme Court to allay concerns from conservatives that he wouldn’t choose someone to their liking.” He added that he had gotten names from the Federalist Society and The Heritage Foundation.7
When the first list was released on May 18, 2016, the reaction from progressives was swift: “Nan Aron, the president of the liberal Alliance for Justice Action Council, deplored Mr. Trump’s choice of potential justices as ‘dangerous,’ ” the New York Times reported. “ ‘The list includes some of the most extreme conservatives on the federal bench today,’ she said.“8
Dangerous? Extreme? Doubtless, those terms have political salience. But like so many of the concerns we heard during the Gorsuch and Kavanaugh hearings — about the “little man,” for example — they tell us little except, possibly, that many liberals may still be seeing their opponents through a Borkian lens, when we’re largely past that.
And it isn’t simply that Trump’s list includes mostly younger potential nominees who will serve far into the future. It’s that these lawyers came of age immersed in more than four decades of spirited debate within the Federalist Society, the think tanks and beyond. When Bork was nominated, judicial restraint dominated conservative thought. Today, judicial engagement is as likely to be advocated — and more likely as the generations change. And therein may be the impact down the road of Trump’s judicial nominees.
Look at many of the people Trump has already put on the courts below — Don Willett, James Ho, Neomi Rao, I could go on. Like Gorsuch and Kavanaugh, they’re not the “ABA lawyers” of old, recommended for the courts by their state’s senators. These are justices and judges steeped in the nation’s first principles and in the history that has given us Leviathan. It’s not inconceivable that over time, these new justices and judges, less “restrained” than the generation they succeed, will be less reluctant than their predecessors to take on that behemoth, to revive the doctrine of enumerated powers, to go after the administrative state, and to secure the full range of liberties that the Constitution promises.
The court, for example, may soon extend its scrutiny to congressional actions that empower the modern administrative state, starting with the nondelegation doctrine. Witness the U.S. Supreme Court’s just‐decided Gundy v. United States with the long, devastating Justice Gorsuch dissent, to say nothing of Justice Samuel Alito’s short “concurrence” inviting a future challenge to the doctrine. And the administrative state itself, through which progressives have regularly worked their will, may little longer be insulated from judicial scrutiny by the court’s deference doctrines.
In this Supreme Court term’s Kisor v. Wilkie, for example, it was again Justice Gorsuch who led the attack on Auer deference, urging the court to “stop this business of making up excuses for judges to abdicate their job of interpreting the law.” Can Chevron deference be far behind?
If Congress can’t or won’t act, in the face of an ever‐growing $22 trillion national debt that soon will bury us, can this Leviathan be, if not overturned, at least chipped away by the court? After eight decades of largely unconstitutional government expansion, it’s a question worth asking.