Do Conservatives Own the Supreme Court?
A leading opinion celebrated in conservative circles is that conservatives now own the Supreme Court. But it seems premature to celebrate.
By Ken Masugi
July 27, 2021
David Rivkin and Andrew Grossman recently summed up their case for an existing conservative Supreme Court majority with honor and praise going to the “conservative legal movement that produced the court’s majority.” Unfortunately, their arguments may deceive readers about what has actually been achieved in the high court and why it will prove wanting. Despite its fundamental flaws, the essay should be taken with utmost seriousness, for Rivkin, the senior writer, has been for decades one of the most insightful observers of the court.
Politically, however, Rivkin and Grossman (as well as conservative jurists) are at a disadvantage if they attempt to fight contemporary judicial wars with mid-20th century legal weapons. I speak here of notions such as a “jurisprudence of restraint” and opposition to “judicial activism.”
The opportunistic and attacking enemy will seize these weapons and turn them against their wielders, who will be denounced as elitists, anti-democratic, and, of course, racists. Rivkin makes the pitch for the late Justice Antonin Scalia’s “originalism” and “textualism” to turn back the leftist critical legal theorists (“crits”) emerging from the law schools as well as their pioneering predecessors. (The critical race theory now assailing school districts is a popularized identity politics version of the same phenomenon.) But the law on which these Scalia doctrines rest is in motion.
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