The Left Needs to Take Back the Constitution

With the catastrophic recent term of the Supreme Court finally concluded, it can no longer be denied that the judiciary is firmly under the thumb of the conservative movement. In discussions of how the conservatives accomplished this feat, we often hear about the organizing acumen of the Federalist Society, or the vast financial resources of the Kochs, the Olins, and the Scaifes. But one critical ingredient has been largely overlooked, something the conservative movement has but its progressive counterpart does not: a compelling constitutional ideology.

This constitutional ideology—of which “originalism” is the most well-known offshoot—is an intellectual tool used by conservative judges to translate the political goals of the Republican Party into the language of judicial opinion. Law and politics are supposed to be different, so a judicial opinion cannot sound like a stump speech. Conservative constitutional ideology bridges the gap, translating Republican stump speeches into the supposedly apolitical language of jurisprudence, and supplying conservative judges with the rhetorical tropes and legal concepts they need to issue political decisions while maintaining a facade of legal reasoning.

For example, in Dobbs v. Jackson Women’s Health Organization, Justice Alito did not say, “I am overturning Roe because I am pro-life.” He did not say, “I am overturning Roe because I am a Republican.” Instead, he said he was overturning Roe because the right to obtain an abortion does not “have a sound basis in precedent,” and because “regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny,” and because the Roe decision is not “rooted in our Nation’s history and tradition.” These snippets of impenetrable prose are simply the translation of the Republican Party’s platform into legalese. In making this translation, Alito and his fellow justices relied on legal concepts created by a decades-long project to invent and promulgate a new conservative legal ideology.

In addition to helping judges launder the Republican Party’s platform into judicial opinions, the conservative constitutional ideology serves a more subtle role as well. True believers in originalism see themselves as the sole inheritors of the “true” Constitution of the founding fathers. This messianic belief strengthens their will to power and motivates the conservative legal movement to adopt the hard-edged tactics that won it the judiciary. It gives the movement the self-confidence required to use the judiciary to impose its political vision on the rest of the country.

Compare this constitutional ideology with the current version of its liberal counterpart. Liberals, disciplined by decades of humiliating defeats in the courts, have entered into what Harvard Law professor Mark Tushnet has called a “defensive crouch,” narrowing their vision of what the Constitution stands for. Liberals drain their constitutional arguments of all moral or political substance, instead relying on technicalities and Latin phrases, hoping that by being scrupulously “neutral” they can shame conservatives into following suit. It should be no surprise that this strategy has failed.