The Supreme Court’s Conservative Revolution Is Already Happening

“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.”

“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”

“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.”

The nihilism of Neil Gorsuch

“Neil Gorsuch was ready to blow up the US housing market over a minor legal violation.

The case in front of the Supreme Court was Collins v. Yellen (2021), which had at its center the Federal Housing Finance Agency (FHFA), an obscure body that oversaw hundreds of billions of dollars’ worth of transactions intended to stabilize the housing market after the 2008 recession. The FHFA is led by a single director whom only the president can fire “for cause.” The plaintiffs in Collins v. Yellen argued the president must have unlimited power to fire the agency’s head, citing the Supreme Court’s 2020 ruling in Seila Law LLC v. Consumer Financial Protection Bureau (CFPB).

But under the Collins plaintiffs’ arguments, it also followed that if the FHFA head was fired, every action the agency had taken since its creation in 2008 should be declared void — a truly radical prospect. That argument won very little favor from the justices. In June, the Court handed down a relatively modest opinion that gave President Joe Biden (and all future presidents) the power to fire the FHFA director without reversing the agency’s past work.

But Gorsuch would have none of it.

In a partial dissent, Gorsuch complained that his colleagues were too spooked by the prospect of “unwinding or disgorging hundreds of millions of dollars that have already changed hands” (an underestimate of the amount of money at stake by several orders of magnitude). The proper approach, Gorsuch opined in Collins, was to declare the FHFA’s actions “void.”

If Gorsuch had gotten his way, 13 years of work and hundreds of billions of dollars’ worth of transactions would have been unraveled, possibly delivering a shock to the mortgage-lending industry similar to that of the 2008 crisis — or even sending the world economy into a tailspin.

And yet, for Gorsuch, the potential consequences were irrelevant to how the Court should rule.

It wasn’t the only case this term where Gorsuch brushed aside worries about widespread disruption that could have done tremendous harm to millions of people.”

“The lodestar of Gorsuch’s rhetoric about how judges should interpret the law is “textualism,” which he described in a 2020 book as the idea that judges’ sole task when interpreting legal texts is to determine “what an ordinary English speaker familiar with the law’s usages would have understood the statutory text to mean at the time of its enactment.””

“In reality, this method rarely lives up to such lofty promises. Many legal texts (including much of the Constitution) are ambiguous and can be fairly read in many ways. And what should a court do if it concludes that a century-old decision — one that millions of individuals and businesses may have relied on for decades — misread the text of a statute? Should 100 years of settled law be upended?

Setting aside textualism’s flaws, Gorsuch’s record on the Supreme Court exposes just how spotty his application of the methodology is. Though his own opinions frequently preach the gospel of textualism, he’s shown no compunction about joining other justices’ opinions that treat the text of a statute as merely optional.”

“Gorsuch is also perfectly willing to follow anti-textualist precedents that yield conservative results.”

“Gorsuch’s commitment to textualism can be little more than hot air. He is a selective textualist, who frequently evangelizes in favor of this method of interpretation but often abandons it in cases that reach a conservative result.”

“When Gorsuch has the chance to write a majority opinion, in other words, he typically shoots for the moon. His jurisprudence shows utter disregard for the norms of an institution he now belongs to, and for the work of generations to come up with a system of law that can manage a pluralistic society. It’s a revolutionary project, breathtaking in its audacity and nihilistic at its core.”

Conservatives Are Asking You To Disbelieve Your Own Eyes

“The numbskulls who stormed the Capitol, some of whom are facing modest prison sentences for their role in the clownish putsch, didn’t show up by happenstance. “All of them—all of them were telling us, ‘Trump sent us,'” according to recent testimony at a U.S. House of Representatives hearing by a U.S. Capitol police officer who fought back the insurgents.

Not every participant in the day’s sordid events engaged in violence or vandalism, of course, and whatever punishments the courts mete out should fit the particular crime. But this was no tourist visit gone awry. Not every person who joined in left-wing attacks in Portland committed crimes, either, but I don’t suppose Trump supporters would cut those folks slack.

The Trumpsters’ silliest argument is that Antifa, the fascistic “anti-fascists” who turned portions of U.S. cities into rubble, were behind the Capitol event. Conservatives touted that narrative immediately after January 6. Apparently, that loose-knit movement runs so meticulously that it recruited thousands of volunteers who acted exactly like Trump supporters.

Why believe your own eyes? Sure, a few lefties might have infiltrated the pro-Trump mob. That doesn’t make it an Antifa riot. The Portland scene wasn’t a right-wing event because a few right-wing infiltrators may have joined in the action. I’ve attended many protests and guarantee that they attract all sorts of nut jobs. It’s not hard for anyone to gain admission.

Despite GOP efforts to rewrite history, my eyes confirm the conclusion drawn by conservative writer David Frum: “The January 6 attack was incited by the head of the American government, the man who had sworn to protect and defend that government. It was the thing most feared by the authors of the U.S. Constitution: a betrayal of the highest office by the holder of that office.”

Here’s the problem. It portends dangers for the future if so many conservatives refuse to cop to the obvious truths of that day. If we can’t all agree on basic, obvious facts about an event that unfolded before our eyes, then we’re headed toward a well-trod path of internecine struggles where we just pick a side and fight to the bitter end.”

“My problem is with the political right’s movement toward, well, authoritarianism, exemplified by its refusal to embrace facts that don’t conform to their alternative reality—and their unwavering support for a man rather than a set of ideas. It’s ironic that the man they’ve chosen to follow seems to embody moral characteristics they’ve long railed against, but go figure.

Even GOP leaders who know better and occasionally speak out against Trump’s disinformation—House Minority Leader Kevin McCarthy (R–Calif.) and Senate Minority Leader Mitch McConnell (R–Ky.)—always end up toeing the party line. They dare not defy Trump or his base voters.”

How Trump Has Redefined Conservatism

“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.”

“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”

“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.”

“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”

Time for Conservatives To Rethink Their Priorities

“the GOP has embraced many policy positions—and attitudes—that have little to do with advancing human liberty. Throughout my career, conservatives and libertarians have been allies on many issues and at odds on others, but now we’re like residents of different planets.

For instance, both groups agreed on the dangers of Soviet expansion. Libertarians, however, warned that giving American security agencies too much power would undermine liberties at home. Conservatives and libertarians worked together to fight progressive assaults on property rights, but libertarians wondered why conservatives couldn’t see how the drug war undermined those goals.

Still, we had many opportunities to work together. Whereas conservatives in Europe never had a problem using big-government to achieve their ends, American conservatives were about “conserving” America’s particular traditions. Our nation’s founding fathers were classical liberals, so conservatives often defended libertarian ideals.

The Trump era solidified long-brewing changes in the conservative movement, as it moved toward a more European-style approach that wasn’t concerned about limits on government power. Trump wasn’t a political thinker, but a marketing savant who tapped into popular and often-legitimate resentments of the increasingly “woke” Left.

Republican politicians mostly stood by Trump, even as he shattered democratic norms and reshaped conservative policy prescriptions, less out of fear of Trump himself and more out of fear of the conservative grassroots voter. What does it even mean to be a conservative these days?

In 2020, the GOP dispensed with its platform and passed a resolution stating its enthusiast support for the president’s agenda. Party platforms are unenforceable, but they provide the faithful with an opportunity to create a mission statement. Apparently, being a conservative now means supporting whatever the leader happens to believe.

Such an approach is temperamentally and philosophically non-conservative, as are many of the goals of the Trumpiest wannabes. Sen. Josh Hawley (R–Mo.), best known for giving a fist pump to MAGA protesters before some of them stormed the Capitol, recently introduced a plan to boost the federal minimum wage to $15 an hour.”

“MAGA conservatives want libertarians to join their tribe, but their publications offer frequent attacks on the free market. The populist right wants to boost federal spending, impose draconian immigration controls, expand the power of police and spy agencies, step up the drug war and, well, stop when you see something of value to libertarians.

Since Reagan, conservatism has revolved around four concepts, explains Jonathan Last in The Bulwark, a right-leaning anti-Trump publication. There was “temperamental conservatism,” which worried about the consequences of progressive social engineering. There also was “foreign-affairs conservatism,” “fiscal conservatism” and “social conservatism.”

“‘Conservatism’ as it is now viewed by the majority of people who identify as conservatives—and who once believed in all or most of those four precepts—is now about one thing and one thing only: Revanchism,” Last wrote. Sure, I had to look it up, but “revanchism” means “a policy of seeking to retaliate, especially to recover lost territory.”

Yes, that “own the libs” approach has muscled out principled discussions about long-held conservative ideals and goals.”

“slow change rather than dramatic progress, a focus on prudence, trust in human liberty and variety, respect for societal norms, love of virtue, and commitment to social peace—are at odds with the nihilistic bomb throwing of a conservative populist movement that seems as radical at times as its progressive enemy.”

The Texas Bill That Prohibits Social Media Censorship Is a Mess

“Many Republican legislators at both the state and national level are profoundly misguided about Section 230. They seem to think it’s getting in the way of conservatives’ free speech rights when in reality it gives Big Tech additional legal cover for continuing to platform right-wing speech. Legislation aimed at hurting social media companies will ultimately end up hurting the kinds of speech that have flourished on Facebook and Twitter but would not have been published in mainstream media outlets.

If anything, that’s disproportionately likely to be right-wing speech.”

Why Ted Cruz and Tom Cotton Are Like Trump Cover Bands

“Nobody expected the mob of bands that followed the Beatles’ early success would replicate the lads’ triumphs just because they wore their hair long, sported the same suits and drew on the same musical influences. And they didn’t. The imitators wrote hits, filled theaters and even caused young girls to scream, but Beatlemania—almost a mass delusion, a form of ecstatic consciousness provoked just by the toss of a mop-topped head, or an arrival on an airport tarmac—remained highly specific to the actual Beatles.

The Donald Trump phenomenon is the closest thing we’ve seen in American politics, with the Republican base standing in for smitten teenagers in 1964. So it shouldn’t have come as a surprise that when the base gathered for its annual conclave at CPAC last week, none of Trump’s would-be successors roused more of a response than a group of Fab Four impersonators at a sock hop.

They tried—boy, did they try. Sen. Tom Cotton (R-Ark.), trying to boost his anti-immigration credentials, dropped a quip about the Biden administration’s border policy—“That’s not catch-and-release,” he said, “that’s recruit-and-release!”—at which point a “few polite titters rippled through the ballroom,” reporter Elaina Plott observed in the New York Times. Sen. Rick Scott (R-Fla.) bombed, too, as he tried to out-Trump Trump with an anti-China line that zinged Hunter Biden. (He “paused for a reaction that never came,” wrote Plott.) Sen. Ted Cruz (R-Texas), the college debate champion and one-time Tea Party darling, treated the session like a stand-up comedy gig, drawing only scattered applause. The only Cruz line that made the crowd roar was one in praise of Dear Leader Trump, the Texas Monthly reported.

Sen. Josh Hawley (R-Mo.) and former Secretary of State Mike Pompeo’s Trump impressions did better, but the winners of the battle of the bands were Govs. Ron DeSantis (R-Fla.) and Kristi Noem (R-S.D.), both of whom ranked second and third to Trump in CPAC’s 2024 straw presidential poll—but more from their resistance to the pandemic lockdown than their evocation of Trump himself.

Can nobody in the GOP wear the big man’s big suit and endless red tie? Trump himself got a decent response from the “ebullient crowd” (Washington Post) when he spoke at CPAC, so the base hasn’t tired of his jokes, insults, grievances and bombast. They just needed to hear the original hits as performed by the original hit-maker.”

Parler, the “free speech” Twitter wannabe, explained

“But despite the recent attention, some say the rise of Parler fits into the larger history of American conservatives and their relationship with the media.

“This follows a pattern of what the right wing has done [since] the rise of talk radio in the ’80s, and then through live cable TV, and then the rise of social media,” Lawrence Rosenthal, the chair of the University of California Berkeley’s Center for Right-Wing Studies, told Recode. “In each case, what you found is that the right wing gives up on participating in mainstream media and creates an alternative universe.””

“Based in Nevada, the company behind Parler is run primarily by two people: Matze and Jared Thomson, who serves as CTO. Neither of them had a particular public profile before creating the app. Jeffrey Wernick, a bitcoin enthusiast and early Airbnb investor, serves as the company’s chief operating officer. But there are other people funding the app.

Earlier this month, Parler confirmed to the Wall Street Journal that conservative megadonor Rebekah Mercer was the company’s lead investor and agreed to fund Parler only if it gave users control over what they saw on the platform.”