“The discontent Trump used to propel himself to the White House has always been present on the American right. When Sen. Joseph McCarthy (R–Wis.) began his crusade against “the hidden Communists in America and their liberal Democratic protectors,” for example, he found support in the Republican Party and in the few conservative publications that existed at the time—The American Mercury, Human Events, even the libertarian-leaning Freeman. As McCarthy’s accusations multiplied and “became more outrageous, more galling, and more disconnected from reality,” Continetti writes, conservatives such as William F. Buckley Jr. still backed his crusade. There are similarities in the way Sen. Robert A. Taft (R–Ohio) responded to McCarthy’s conspiracy theories and the way Sen. Mitch McConnell (R–Ky.) has responded to Trump’s. While McCarthy ultimately undermined himself by launching outrageous accusations against President Dwight D. Eisenhower, Continetti demonstrates just how long conservatives have been tempted to follow aggressive demagogues while they lambaste liberals.
Traditionally, conservative elites have tried to channel populist sentiments into a respectable and successful movement. No one had to grapple with this question more than Buckley, the founder of National Review. The usual conservative narrative says that Buckley legitimized conservatism by being a gatekeeper: In keeping the conspiracism of the John Birch Society and the radical individualism of Ayn Rand at arm’s length, he made it less likely that conservatives would be labeled extremists. In the case of the John Birch Society, Buckley wrote a 5,000-word essay, “The Question of Robert Welch,” that condemned the group’s founder, arguing that “the best thing Mr. Welch could do to serve the cause of anticommunism in the United States would be to resign.” Buckley’s purges are often held up as a great success, but the reality is that Welch did not resign and the John Birch Society continued to have influence.
While Buckley initially aligned his magazine with segregationists in the South, a choice that has marred the movement’s reputation ever since, he was resolute in opposing Alabama Gov. George Wallace’s particular brand of populism. Wallace, of course, was a strident proponent of segregation in the 1960s. During his second run for president, on a third-party ticket in 1968, the candidate turned heavily to anti-elitist rhetoric. “As he began to attack the federal government and its know-it-all politicians and bureaucrats,” Continetti writes, “his support among conservatives grew.” Buckley called Wallace “Mr. Evil,” “a dangerous man,” and a “great phony.” He was also taken aback by the “uncouthness that seems to account for his general popularity.”
Other conservatives joined the denunciations. Wallace’s conservative fans, National Review founding senior editor Frank Meyer wrote, need to recognize that “there are other dangers to conservatism and to the civilization conservatives are defending than the liberal Establishment, and that to fight liberalism without guarding against these dangers runs the risk of ending in a situation as bad as or worse as our present one.” In modern parlance: Don’t back a man like Wallace to own the libs.”‘
“In addition to overturning a nearly half-century-long federal right to an abortion, the court struck down gun-licensing laws in the most populous states, expanded state funding for religious schools, broadened the rights of public-school employees to pray publicly at work and halted lower court orders requiring two states to redraw congressional boundaries to give minority voters a better chance of electing candidates of their choice.
“What the court did just on abortion, guns and congressional power in the last eight days—that alone is momentous [but] if these justices stay together over the next few years, I don’t even think the first shoe has dropped,” University of California at Irvine Law Professor Rick Hasen said. “There’s so much more the Supreme Court could do to change American society.”
On Thursday, minutes after dealing a severe blow to President Joe Biden’s plan to reduce power-plant emissions to combat climate change, the high court announced it will take up a case from North Carolina next term that could give state legislatures vast power to draw district lines and set election rules even if state courts, commissions or executive officials disagree.
The so-called independent state legislature theory has lingered at the fringes of election-law debates for years, but was seized upon by former President Donald Trump in 2020 in his unsuccessful efforts to overturn Biden’s win.
“It’s kind of uncharted territory,” Hasen said. “It could have some far-reaching and unintended consequences.”
A sweeping Supreme Court ruling on the state-legislature issue might give state lawmakers the authority to appoint presidential electors, regardless of what state courts say or how a majority of a state’s voters cast their ballots.
In the 30 states with Republican legislatures, a ruling upholding the theory could give the GOP a big leg up in more routine House and Senate elections. But the effect in Democratic-run states could also be polarizing, with a redistricting commission in California put out of business and efforts by New York courts to limit gerrymandering reversed.
That case will join other polarizing issues already on the docket for next term: a new Voting Rights Act challenge from Alabama, a pair of cases challenging race-based affirmative action programs in higher education and a case brought by a web designer claiming that she should be able to ignore a Colorado law barring discrimination against same-sex couples.
As with many of the cases the Supreme Court decided in recent weeks, any of those cases could qualify as the most significant of an ordinary court term, but the justices have decided to hear them all.”
“Unlike most accounts of the American conservative movement, Matthew Continetti’s The Right begins in the 1920s, when two Republican presidents returned the country to normalcy after World War I. The ideals of that era’s Republicans were not so different from those espoused by former President Donald Trump today: They believed in cutting taxes, restricting immigration, and protecting American industry through tariffs. But there was one fundamental difference: Presidents Warren Harding and Calvin Coolidge rejected the populism of their age. They aimed to preserve American institutions. Trump is more like William Jennings Bryan, riding the coattails of discontent. He represents a time, Continetti argues, when an increasingly apocalyptic conservative movement “no longer viewed core American institutions as worth defending.””
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“Traditionally, conservative elites have tried to channel populist sentiments into a respectable and successful movement. No one had to grapple with this question more than Buckley, the founder of National Review. The usual conservative narrative says that Buckley legitimized conservatism by being a gatekeeper: In keeping the conspiracism of the John Birch Society and the radical individualism of Ayn Rand at arm’s length, he made it less likely that conservatives would be labeled extremists. In the case of the John Birch Society, Buckley wrote a 5,000-word essay, “The Question of Robert Welch,” that condemned the group’s founder, arguing that “the best thing Mr. Welch could do to serve the cause of anticommunism in the United States would be to resign.” Buckley’s purges are often held up as a great success, but the reality is that Welch did not resign and the John Birch Society continued to have influence.”
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“Continetti’s major contribution comes in explaining how conservatism has changed since the end of the Cold War. Here he details the conflict between neoconservatives, such as Bill Kristol, and paleoconservatives, such as Pat Buchanan. With their dedication to the culture war and their opposition to foreign intervention and immigration, the paleoconservatives presaged Trump’s electoral success in 2016.
The paleocons lost the political battles of the 1990s and 2000s. But the War on Terror ultimately discredited the neoconservatives, opening the door for populist discontent to capture the Republican Party. The first manifestation of this was the Tea Party movement. While Continetti draws a straight line from this to Trump’s election, in reality the Tea Party encompassed several strands of conservatism (all populist in nature) with conflicting conceptions of what 21st century conservatism should entail. Sens. Rand Paul of Kentucky, Marco Rubio of Florida, and Ted Cruz of Texas all rode the Tea Party wave to victory in 2010–12, and all had very different visions for the future of the nation—and very different visions from Trump’s. Nonetheless, the anti-establishment politics that emerged in the wake of the Iraq War and the 2008 financial crisis ultimately brought Trump to power.
It was during this time, from 2010 to 2016, that Continetti believes “the populist American Right [became] less interested in preserving institutions than in tearing them down.” One could hardly think of a better instrument for that purpose than Trump. Trump condemned illegal immigration and trade with China, announced “support for a ban on Muslim entry into the United States,” and recalibrated “American politics along the axis of national identity.” Many conservatives initially condemned him, and National Review even released a special issue titled “Against Trump.” One of its contributors called the candidate “a philosophically unmoored political opportunist who would trash the broad conservative ideological consensus within the GOP in favor of a free-floating populism with strong-man overtones.” Nonetheless, Trump won.”
“Justice Amy Coney Barrett had been a member of the Supreme Court for less than a month when she cast the key vote in one of the most consequential religion cases of the past century.
Months earlier, when the seat she would fill was still held by Justice Ruth Bader Ginsburg, the Court had handed down a series of 5-4 decisions establishing that churches and other houses of worship must comply with state occupancy limits and other rules imposed upon them to slow the spread of Covid-19.
As Chief Justice John Roberts, the only Republican appointee to join these decisions, explained in South Bay United Pentecostal Church v. Newsom (2020), “our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States.” And these officials’ decisions “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”
But this sort of judicial humility no longer enjoyed majority support on the Court once Barrett’s confirmation gave GOP justices a 6-3 supermajority. Twenty-nine days after Barrett became Justice Barrett, she united with her fellow Trump appointees and two other hardline conservative justices in Roman Catholic Diocese of Brooklyn v. Cuomo (2020), a decision striking down the very sort of occupancy limits that the Court permitted in South Bay. The upshot of this decision is that the public’s interest in controlling a deadly disease must give way to the wishes of certain religious litigants.”
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“Before Roman Catholic Diocese, religious objectors typically had to follow a “neutral law of general applicability” — meaning that these objectors must obey the same laws that everyone else must follow. Roman Catholic Diocese technically did not abolish this rule, but it redefined what constitutes a “neutral law of general applicability” so narrowly that nearly any religious conservative with a clever lawyer can expect to prevail in a lawsuit.
That decision is part of a much bigger pattern. Since the Court’s Republican majority became a supermajority, the Court has treated religion cases as its highest priority.”
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“Several of the justices are openly hostile to the very idea that the Constitution imposes limits on the government’s ability to advance one faith over others. At a recent oral argument, for example, Justice Neil Gorsuch derisively referred to the “so-called separation of . . . church and state.”
Indeed, it appears likely that the Court may even require the government to subsidize religion, at least in certain circumstances.
At December’s oral arguments in Carson v. Makin, for example, the Court considered a Maine program that provides tuition vouchers to some students, which they can use to pay for education at a secular private school when there’s no public school nearby. Though the state says it wishes to remain “neutral and silent” on matters of religion and not allow its vouchers to go to private religious schools, many of the justices appeared to view this kind of neutrality as unlawful. “Discriminating against all religions,” Justice Brett Kavanaugh suggested, is itself a form of anti-religious discrimination that violates his conception of the Constitution.
For many decades, the Court held the opposite view. As the Court held in Everson v. Board of Education (1947), “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”
But Everson’s rule is now dead. And the Court appears likely to require secular taxpayers to pay for religious education, at least under some circumstances.”
“For portions of the MAGA right, the stakes in politics seem unbearably high. They imagine their elections stolen without consequences, their children menaced by transsexuals in the schools, their fathers’ manufacturing jobs shipped away by globalist corporations that mock their values. People whose worldviews sicken them seem to control every citadel of political and cultural power and to brook no opposition.
Even President Donald Trump seemed powerless to shift America back to the country they wanted. And so several institutions and thinkers of the intellectual right have declared that it’s time to take the gloves off in a way even Trump would not. It’s time, they argue, to fight against “liberalism”—not just the attitudes associated with the Democratic Party, but the historical idea of a social order based on people’s ability to make their own choices about what to do with their lives and property, to live and travel where they wish, to choose meanings, family structures, attitudes, and lifeways freed of any obligation to national or ethnic traditions. They want the American right to get tough and to crush progressivism at its root.
Thus, there has been a small intellectual revival of mostly forgotten or despised thinkers often dubbed “reactionary.” In A World After Liberalism, Matthew Rose of the Morningside Institute assesses five of them”
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“These reactionary writers see, in Rose’s words, “humans as naturally tribal, not autonomous; individuals as inherently unequal, not equal; politics as grounded in authority, not consent; societies as properly closed, not open.””
“It’s easy to dismiss this kind of illiberal language as purely rhetorical: radical posturing with few practical implications. But the past year of conservative politics, from the January 6 riot to the spread of voting restrictions and extreme gerrymandering to the rise of Rufo’s war on the education system, has shown that the right’s illiberal impulses are actually shaping our reality.
Conservatism, in theory, is supposed to be an ideology of preservation. But the current right is increasingly being shaped by a reactionary impulse bent on the radical transformation — if not the outright destruction — of America’s leading institutions.”
“in many ways, the Supreme Court’s conservative revolution is already here: The court hasn’t been this ideologically tilted in almost 100 years. Capturing the full breadth of this shift is difficult because the metrics we use to measure the court’s ideology are driven by hard-to-track factors like the types of cases the court takes up. For the first time in decades, too, a single justice isn’t holding the reins. The conservative justices can now assemble a majority more easily, giving them the power to push the court even further right.
That power may take some adjusting to — for both the public and the justices. The past term showed that there will still be plenty of room for disagreement on the precise path forward. One example was a high-profile religious liberty case where the most conservative justices took their fellow GOP appointees to task for issuing a ruling they saw as too timid. And the main priority of the liberal justices, now distinctly in the minority, appeared to be damage control. Moreover, some big decisions were taking place outside the public eye.”
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“According to the Supreme Court Database, 60 percent of all decisions last term went in a conservative direction, as well as 59 percent of close decisions — which is to say, decisions in which the minority side had three or four votes. That makes the court’s previous term the most conservative term since 2008”
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“Increasingly, too, the justices are making big decisions without fully explaining their reasoning, through cases that have emerged through the court’s “shadow docket,” where the justices are asked to rule quickly, without the extensive legal briefing or oral arguments that happen in normal Supreme Court cases. Sometimes, these orders are only one sentence long. And the justices don’t have to say how they voted or why.
Normally, this swiftness and secrecy isn’t especially newsworthy because the rulings that come out of the shadow docket just aren’t that significant. But that has changed in recent years. Some of the court’s biggest rulings in the past year — including its decision to strike down COVID-19 restrictions on religious gatherings and its decision to allow a highly restrictive abortion law to go into effect in Texas — came out of the shadow docket.
The shadow docket is very difficult to track, for obvious reasons — it’s hard to know what the justices are even doing.”
“In 2004, Pennsylvania Rep. Patrick Toomey was the face of the conservative insurgency. An anti-taxes, anti-spending hawk, Toomey was one of many conservative upstarts who primaried a more moderate fellow Republican; in Toomey’s case, longtime Pennsylvania Sen. Arlen Specter.
The Republican president at the time, George W. Bush, sided with Specter, who ultimately won by less than 2 percentage points. After Specter switched parties in 2009 when polls showed Toomey defeating him in a primary, Toomey won the seat in 2010.1
But despite the conservative bona fides that helped Toomey get elected, he experienced backlash from the GOP after becoming one of seven Senate Republicans to join Democrats in voting to convict former President Donald Trump in his second impeachment trial.
Toomey’s transition from conservative insurgent to a pariah among certain factions of his party is not unique, though.
Sen. Mitt Romney called himself “severely conservative” during his 2012 presidential bid and planned to repeal the Affordable Care Act. But when he became a senator years later, he often bucked Trump’s agenda and twice voted to convict Trump in his impeachment trials, facing a drumbeat of criticism from Republicans in response.
To be clear, Toomey, Romney and now-ousted GOP party leader Rep. Liz Cheney have not abandoned the policy views that a decade ago flagged them as conservatives. But in the interim, Trump and his presidency may have shifted the ideological ground beneath their feet.”
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“looking just at our 2021 survey data, a politician’s support for Trump has come to define who party activists think of as conservative. Romney, Toomey and Sasse were all rated as fairly liberal Republicans despite their conservative voting records in Congress”
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“Staunchly pro-Trump politicians (or Trump-adjacent politicians), like Florida Gov. Ron DeSantis, former Vice President Mike Pence, Sens. Tom Cotton, Josh Hawley and Lindsey Graham, and Trump were all clustered together on the more conservative end of the spectrum, even though there is quite a bit of difference, ideologically speaking, between these men.”
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“despite his ideological heterodoxies, Trump was rated as more conservative than all but 10 of the 114 politicians we asked about. Ideology, in other words, isn’t just about policies.5”