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Don’t blame partisan judges. The real problem is ‘movement’ judges.
Illustration by Sol Cotti for POLITICO
By ROBERT L. TSAI and MARY ZIEGLER
06/25/2023 07:00 AM EDT
Robert L. Tsai is professor of law at Boston University and the author of Practical Equality: Forging Justice in a Divided Nation.
Mary Ziegler is a professor of law at Florida State University and the author of Abortion and the Law in America: Roe v. Wade to the Present.
We’ve had a year now to contemplate the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization and what led up to the justices’ decision to overturn 50 years of jurisprudence and end the constitutional right to abortion. Many abortion rights supporters and others on the left blame the court’s Republican-appointed majority, seeing those judges as too politically partisan.
But we see something a bit different going on. To really understand why the Supreme Court overruled Roe v. Wade, we think it’s crucial to see Dobbs as the triumph of two social movements and the rising influence of a distinctive kind of judge.
First, there is the grassroots anti-abortion movement, which has long been in the trenches and seeks the elimination of elective abortions and recognition of fetal personhood. Second, there’s the elite legal conservative movement, which is motivated to restore what it describes as the original meaning of the U.S. Constitution. Since at least the 1980s, when conservative legal icon Robert Bork denounced Roe as an egregious example of judicial policymaking, these legal elites have also called for the undoing of abortion rights.
These two movements have occasionally clashed, but as we argue at greater length in a forthcoming law review article, Dobbs also shows what happens when they work together, and when their foot soldiers and close allies — including what we call “movement judges” — take actions that facilitate movement goals.
Movement judges have a different mindset than other types of judges, and that’s true whether they come from the political left or the political right. A movement judge is less likely to defer to experts than a technocratic one and more likely to think of issues in terms of values. A preservationist tries to work with existing precedent as much as possible and cares about how the institution is perceived. By contrast, a movement judge is focused on what a mobilized subset of people want and is willing to overturn precedent to get there.
Sometimes, the public, incorrectly, views movement judges as interchangeable with partisan judges. But partisan judges are something different. Partisan judges have been a part of American politics since the nation’s founding. The rise of national parties ensured that the process of selecting federal judges would be controlled by partisan forces, and the individuals appointed to judicial positions would be vetted according to some partisan considerations. For instance, after losing the 1800 presidential election, the Federalist Party sought to install loyal Federalists in newly created judicial positions.
Unlike a partisan judge, the movement judge will be tempted to advance a movement’s goals even when doing so may harm their political party’s electoral prospects. More so than their counterparts, movement judges are prone to speak like those whom political scientists and historians call “movement” figures when it comes to politically salient legal matters.
As social and intellectual movements have become more effective in shaping constitutional law, they have built their own, unmediated relationships with jurists and even socialized them to act in ways that might cut across the grain of partisan or institutional interests. The Republican Party wants to maintain partisan influence, and judges who harbor preservationist instincts want to maintain the judiciary’s legitimacy. By contrast, social movements are focused on their own long-term ideological goals. When a judge signals receptivity to movement arguments and delivers an ambitious ruling that advances them, that judge behaves as a movement judge.
What we are seeing now on the Supreme Court is a bloc of justices receptive to conservative social movements on key legal issues, and that raises the risk of judge-driven oligarchy: the recalibration of constitutional law for the benefit of the few over the interests of the many. When that bloc has stuck together and a movement mindset has prevailed, this development has already yielded an unprecedented Second Amendment ruling that freezes policymaking authority over dangerous weapons at American life circa 1868. The same majority is responsible for the Dobbs decision, which leaves the federal constitutional rights of pregnant people over their own bodies to that which existed in the late 19th century — which is to say, no rights at all.
Neither ruling was popular with a majority of Americans, and neither seems to be an accident. Instead, both raise the prospect of the nation’s highest court closely aligning with, and acting in tandem with, movements on the political right.
Dobbs dismantled Roe on a timeline that was advantageous to the anti-abortion movement, even though it was plainly damaging to the Republican Party and the reputation of the court itself. | Francis Chung/POLITICO
The original Roe decision,
Dobbs represented a legal and political sea change. By wiping out Roe and Casey, Justice Samuel Alito’s decision endorsed many ideas long advanced by the anti-abortion movement — including the claim that Roe distorted other areas of the law, the assertion that supporters of abortion rights harbor eugenic aims and the argument that Roe is to blame for the polarization of American politics.
It’s worth remembering that there was no pressing need for the Supreme Court to hear a case on 15-week abortion bans last year, no circuit split about their constitutionality — indeed, very few states had introduced such laws in the first place. Dobbs dismantled Roe on a timeline that was advantageous to the anti-abortion movement, even though it was plainly damaging to the Republican Party and to the reputation of the court itself.
Substantively, Dobbs codified a conservative grassroots version of the past. Despite their professed neutrality, the members of the majority rejected the possibility that the right to abortion could be deeply rooted in the nation’s history and tradition, despite evidence to the contrary and notwithstanding the consensus of leading historians in the academy. Instead, the opinion asserted that “abortion had long been a crime in every state.” To support its judgment and narrative, the court relied exclusively on a trio of scholars whose only historical work addressed the problems with Roe itself, scholars who held key roles in grassroots anti-abortion groups or attended events on reversing Roe hosted by leading anti-abortion organizations.
Dobbs also echoed movement arguments in brushing aside the importance of adhering to precedent. A technocratic judge would have cared about what the elimination of a right in this context would do to the medical profession, while a preservationist would have worried about the risk to vulnerable women or how citizens perceive the rule of law. Indeed, Chief Justice John Roberts, who has sometimes behaved as a preservationist, wrote that he would have preferred to continue chipping away at Roe without overruling it completely.
By contrast, Alito not only insisted that the reasoning of Roe and Casey were deeply flawed, but also invoked a comparison popular in movement circles: that Roe should be reviled as much as the court’s infamous segregation decision, Plessy v. Ferguson, a ruling that permitted racial apartheid in America. Even the majority’s response to concerns about the legitimacy of the court echoed movement logic. In Casey, the court had declined to reverse Roe partly out of concerns about the damage such a reversal would do to the court as an institution. In Dobbs, Alito first echoed a point made by anti-abortion activists since the 1980s — that it was Roe that had polarized politics and damaged the court — and then dismissed such concerns before erasing 50 years of precedent.
Because of its conservative ambition and general indifference to the effects of the ruling on anyone beyond fetal life, Dobbs has seemingly played a role in fueling the public’s growing disapproval of the Supreme Court. Americans are not losing faith in the court merely because most of the justices are conservative — after all, the court has had a conservative majority appointed by Republicans for decades. Rather, voters rightly suspect that there is less and less separation between some of the justices and the social movements that litigate issues before them.
To a far greater extent than Alito in Dobbs, U.S. District Court Judge Matthew Kacsmaryk embraced the language and research of anti-abortion organizations in his ruling, which has been stayed pending the results of the appeals process, that the FDA lacked the authority to approve the abortion pill mifepristone. | Senate Judiciary Committee via AP Photo
Movements are sustained not only by ideas and grassroots figures, but also by patrons and benefactors with economic means or formal power — such as politicians and judges — who are receptive to movement arguments, rhetoric, facts, methods and goals. Recent revelations of lavish financial benefits and valuable economic opportunities directed to Supreme Court justices and their relatives, particularly Alito and Justice Clarence Thomas, have raised important issues of legality and propriety. But they also reveal how parties, movements and the wealthy exert influence upon judges: through social ties, financial benefits and public esteem.
The rise of presidents such as Donald Trump who behave more like movement leaders than party chiefs increases the odds that more movement figures will become judges. Trump, or other presidential aspirants who might follow his example, hope to appoint jurists based on projected sympathies. The transformation of the Supreme Court suggests that the former president had some success.
The closer relationship between particular movements and the judiciary makes sense of seemingly disparate phenomena, including Trump’s decision to outsource selection of federal judges to key figures within the conservative legal movement, the stunning decision to overturn Roe last year and reports of close associations and financial benefits moving between advisers on judicial appointments, elected officials and the families of judges.
It also helps explain the growth of a network of fellowships and training conferences aimed at cultivating future movement jurists. For example, the Alliance Defending Freedom, an organization that promotes “a distinctly Christian worldview” of the law, operates the prestigious Blackstone Legal Fellowship, which links Christian law students and elite faculty. To date, the fellowship’s graduates include judges and professors; Justice Amy Coney Barrett did five paid lectures for fellows before joining the Supreme Court. And it helps understand why prominent members of these conservative networks make a point of publicly praising justices for rulings they approve of.
We see this pattern at work with U.S. District Court Judge Matthew Kacsmaryk, who provides perhaps the clearest recent example of a movement judge during the ongoing controversy over the availability of mifepristone, a drug used in over half of abortions in the United States. Many expected Kacsmaryk to be a movement judge, based on his prior anti-abortion activism and a ruling requiring minors at clinics receiving federal funding to get parental consent before receiving birth control. For this reason, the Alliance Defending Freedom chose to file its suit challenging the legality of mifepristone in Amarillo, Texas, where Kacsmaryk presides.
Kacsmaryk met those expectations and then some. In a sweeping order handed down in April, Kacsmaryk ruled that the FDA lacked authority to approve the abortion pill and blocked access to it across the country. As the judge noted, no court had ever before attempted to undo FDA approval of a drug, much less 23 years after the fact. Kacsmaryk’s legal rationale was also aggressive, suggesting that the Comstock Act, a 19th century anti-vice law not used in decades, served as a de facto ban not just on mifepristone but on all abortion.
To a greater extent than Alito in Dobbs, Kacsmaryk embraced the language and research of anti-abortion organizations. Adopting the rhetoric of movement figures, he broadly applied the term “abortionists” to health care workers who participate in the termination of pregnancies, including someone who prescribes mifepristone. He also treated as a cognizable legal injury the mere possibility that someone might experience emotional trauma from viewing an aborted fetus — potentially throwing the courthouse doors wide open to any activist who might remotely object to abortion-related policies. Kacsmaryk’s opinion also nodded toward more ambitious movement goals, citing an amicus brief by John Finnis and Robert George, who have advanced a constitutional argument grounded in fetal personhood.
Kacsmaryk went too far even for a panel of the deeply conservative Fifth Circuit, which opted to reimpose restrictions on mifepristone from 2016 rather than withdraw the drug altogether. And there is some sign that the Supreme Court may have some issue with Kacsmaryk’s ruling too — the justices decided to preserve some access to mifepristone while the litigation continues.
As we wait to see how far the court is willing to go, Kacsmaryk’s ruling is a vivid reminder of how radically differently a movement judge can behave, with little care about being reversed by a higher court and no intention of deciding only what is necessary to resolve the case before them.
Members of the National Black Law Student Association picket the Supreme Court building in Washington, D.C., on Oct. 1, 1984, to protest what they say is unfair justice by the high court for their people. | John Duricka/AP Photo
Once, conservatives warned of judicial activism. This critique gained currency in the 1960s when Earl Warren was chief justice and the Supreme Court was reading the open-textured provisions of the Constitution that promise things like liberty and equal protection to establish new procedural protections for criminal defendants and enforcing desegregation orders. When some Republican appointees joined Democratic counterparts to expand those rights, conservative activists insisted that judges were out of touch with the American people. Progressives, in turn, sought to justify the Warren court’s legal creativity by insisting that guarantees of equality and liberty were as important to a functioning democracy as majority rule.
Now, as the right has become more dependent on judges to entrench favorable policies and create obstacles to reform, conservatives have looked to close the distance between movements and the courts.
This shift has taken decades. Leaders of the conservative legal movement weren’t very interested in abortion at first, and the anti-abortion movement had struggled to influence them. In the 1980s, the early Federalist Society included lawyers with a variety of views on abortion and had sought to play down an issue that seemed unnecessarily divisive.
Furthermore, in the academy, conservative thinkers wanted to focus on methods, seeking to develop a version of constitutional originalism or textualism that might pass for a legitimate judicial approach rather than just window dressing for conservative outcomes. Anti-abortion activists, known for expansive claims about a constitutional right to life, rowdy rallies and even law-breaking blockades, did not seem to be the kind of allies that the Federalist Society needed. In the 1980s and 1990s, anti-abortion lawyers worked to cement their ties with the GOP and the conservative legal movement by stressing textualist arguments popularized by heroes of the Federalist Society like Robert Bork and Antonin Scalia: Roe had no basis in the Constitution’s text or history.
But soon abortion opponents realized a judge’s party affiliation was inadequate to guarantee success for their cause. In Casey, which was decided in 1992, three Republican appointees — David Souter, Sandra Day O’Connor and Anthony Kennedy — wrote a joint opinion preserving what the court called the essence of Roe.
Casey prompted anti-abortion activists to refine what they wanted in nominations to the federal bench. Simply relying on Republicans to identify the usual partisan judges had failed. Thomas struck many as an example of the ideal jurist. By the time of his confirmation, Thomas was not only a beloved figure in the conservative legal movement, he also routinely denounced legal abortion, which he considered to be no different from infanticide. Conservative PACs bankrolled pro-Thomas ads lambasting Democrats who had been critical of the nomination.
Thomas’ defiant response to the sexual harassment accusations raised by Anita Hill — he described the scrutiny as a “high-tech lynching” — struck anti-abortion leaders as important, too. It was a proxy for Thomas’ ideological commitment to conservative causes and his refusal to back down. He modeled a suspicion of institutions and a distrust of elites that anti-abortion activists shared. For activists, the question became how to identify or cultivate more judges like Thomas — ideologically committed and willing to buck both legal orthodoxy and popular politics.
Abortion opponents gained an ally in Leonard Leo, an attorney who had helped Thomas during his 1991 confirmation hearings. By 2001, Leo had become the head of the Federalist Society’s lawyers’ division, was profoundly opposed to legal abortion and wanted to dethrone the American Bar Association from its traditional role rating judicial nominees — which activists saw, as Leo put it, as rejecting conservative judges “on ideological grounds.” In building new networks between movements and judges, and devising more sure-fire selection methods, Leo became both a patron and an entrepreneur.
Following the election of George W. Bush, Leo joined three other men in a group that called itself the Four Horsemen; the group included not only Republican legal veterans like C. Boyden Gray and Edwin Meese III but also prominent Christian conservative Jay Sekulow of the American Center for Law and Justice. Leo, who had long worked as a Republican Party liaison with Catholics, helped steer John Roberts’ Supreme Court nomination through the Senate.
Sandra Day O’Connor’s 2005 retirement led to an inflection point in constitutional politics. Leo initially tried to tamp down conservative anger about the selection of Harriet Miers, a close confidante of the president who had served as Bush’s White House counsel. But anti-abortion activists feared that Miers would turn out to be just another partisan judge or preservationist who might uphold the precedent of Roe.
Social conservatives insisted on a nominee who resembled Thomas — someone with a more clearly defined jurisprudential approach and ideological bent with the fortitude to withstand to public criticism. When Miers stepped aside, Bush selected Alito, a very different kind of nominee. Alito rarely missed the chance to tell people about his deep conservative beliefs or his admiration for conservative icon William F. Buckley Jr. Conservative movement leaders regarded Alito as a safer bet — someone expected to disregard the kind of backlash that might follow the reversal of a decision like Roe v. Wade. As a judge, he frequently gave speeches before Christian organizations that reinforced a sense of shared purpose.
Leo, meanwhile, went on to gain further influence, helping choose the three Trump Supreme Court picks who would ultimately overturn Roe. The money has also flowed: He obtained a $1.6 billion donation last year from a wealthy conservative businessman named Barre Seid for his legal network, likely the largest political gift in American history.
A poll worker helps a voter cast a ballot in Merriam, Kan., on Aug 2, 2022. Kansans were deciding whether or not to remove protection for abortion from the state's constitution. | Kyle Rivas/Getty Images | Kyle Rivas/Getty Images
A critical facet of this story is that a number of conservative grassroots objectives are broadly unpopular, from the recognition of an almost unlimited right to bear arms to the recognition of fetal personhood that would make abortion unconstitutional nationwide. This is an important reason why judicial entrenchment is so attractive to minoritarian interests: They can win by appealing to a handful of judges even when they lose decisively and repeatedly through the political process.
Conservatives have often complained that the Warren Court was “activist” on civil rights, and it’s true that during the Warren Court era, social movements also prodded the Supreme Court from the outside. But most of the key rulings of that era were not authored by movement judges but by appointees who kept their distance from civil rights leaders. While certain decisions were certainly controversial, they were not the product of a political restoration effort or single methodology. While these jurists may have had sympathy for certain movements, they also cared deeply about the legitimacy of the court and explicitly considered the practical ramifications of its decisions — including the potential for resistance.
Abortion again serves as a powerful example of how the public might respond to the results of movement judging. Opponents of reproductive freedom have lost six of six ballot initiatives since the Dobbs decision, and Democrats fared better than expected in the 2022 midterms in part because of the abortion issue. The prospects for a national statute prohibiting abortion look dim at the moment. And yet conservatives hope that judges will revive an interpretation of the Comstock Act rejected since the 1930s precisely because voters would never embrace such an outcome, especially at a time when women can vote.
The more that activists see judges as an alternative to winning popular support, the more judges will serve as conduits for conservative movement goals of economic libertarian activism, anti-abortion policies, expansive gun rights, and efforts to stymie anti-corruption and campaign finance reform measures. These targeted attempts to shape constitutional law now extend not just to judicial elections in key states but also the selection of new federal judges and the lobbying of sitting jurists, even on the Supreme Court.
Moreover, as long as cozy connections between judges and political actors remain poorly regulated and structural conditions remain unchanged, judges will remain open to capture by narrow interests and movements.
A few months after the Dobbs ruling, four of the justices who voted to overturn Roe — Alito, Barrett, Brett Kavanaugh and Neil Gorsuch — appeared at the annual Federalist Society meeting. They were given a standing ovation. A fellow conservative jurist onstage said of Dobbs that he could not think of “any decision on any court by any judge” for which Alito could be “more proud.”
As attendees turned to Alito and showered him with applause, the movements’ circle of political mobilization, judicial interpretation and social esteem became complete.
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