Anytime former Attorney General Edwin Meese says something about the conservative legal movement in America, it’s time to sit down and listen.
One reason is that Meese, who served as Attorney General to President Ronald Reagan from 1985 to 1988, founded this movement four decades ago, with Antonin Scalia, Robert Bork and William Rehnquist. Since then, Meese has been a mainstay of the project.
Another reason is that the “conservative legal movement,” most visibly supported today by the Federalist Society, is the dominant force in US constitutional law. To understand it is, in large part, to understand what our law is and where it is going. No one is better placed to guide our understanding than Ed Meese.
The third reason to listen is even more important. While the conservative legal movement has done a lot of good over the years, it is now facing an existential crisis, and Meese knows it – hence the title of her essay in The Washington post last week: “Has the conservative legal movement succeeded? It all depends on whether the Supreme Court overturns Roe vs. Wade.“
Meese wrote that the next court ruling in Dobbs v. Jackson Women’s Health will “determine” whether the “conservative legal project of the past 40 years, aimed at restoring neutral principles in constitutional interpretation, has been a success”.
Roe deer “Has been for years”, he declared, “the perfect example of disrespect for the distribution of powers of our Constitution and the appropriate judicial role”. What Meese means is that on January 22, 1973, the Supreme Court assumed the power to order abortion on demand. This infamous decision, Meese concluded, “misunderstood the Constitution, ignored the lessons of history and encouraged irresponsible judicial governance.” This is what Judge Byron White said it was in his Roe deer dissent: an “exercise of raw judicial power”.
Meese fears that one (or more) of the six Conservatives currently on court may be distracted by the clamor of “special interests” for their “favorite positions”, disguised as “noble ends.”[s]. “He wrote these words before Dobbs oral argument on December 1. But he eerily anticipated the abortion-firm attorney’s shrill argument last week that the bodily autonomy of women and not the lives of innocent people is the issue. This lawyer also insisted that women need abortion to be equal with men.
Meese’s essay is a timely legal homily. He calls on court conservatives to keep the faith of the fathers, to stand up to overheated rhetoric and naked political demands.
The failure Meese has in mind is that the court will issue a decision in Dobbs it is quite simply not conservative. It would be a move that sacrifices “neutral principles” of constitutional interpretation to political expediency or a rash idea of what a prudent abortion policy should be. Meese is absolutely correct that nothing less than a complete reversal and Roe deer (and its assertion in 1992, Planned Parenthood v. Casey) will be a dismal failure of the conservative legal movement.
But Meese hinted at another potential failure. He wrote that “voters who trusted the judges’ public statements to interpret the law as it was written would have reason to doubt that their trust was well placed.” This perspective lacks the syllogistic order of the first downside risk, which is simply: “If conservatism is defined by neutral principles, then a justice that abandons neutral principles is not a conservative.” This second risk is more practically political than the first. But that would be just as toxic to the conservative legal movement.
Meese pointed out (but did not explore) the fact that Tory judges were installed by Republican presidents running against Roe deer. Even when the terms of the debate were approximations, like “originalism” versus “judicial activism,” everyone knew it was mostly abortion. Just watch the video of the Senate committee grilling of any Supreme Court candidate over the past 20 years.
Then ask yourself: how many of those tough trades are really aimed at reversing Deer, even if neither this case name nor the word “abortion” is heard? And let’s face it: millions of social conservatives, including millions of anti-abortion Catholics, voted for Donald Trump precisely because he said he would appoint “conservative judges” – and he appointed just 20. to show he was serious. We knew what he meant because he knew what we wanted: the end of Roe deer.
On that promise, Trump kept. Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were all on Trump’s list.
Or did he do it?
Meese’s argument is that we won’t know until we know what these judges are doing in Dobbs. He is right. My point (on the second big risk) is that dollars and votes, which made the entire conservative legal movement not only an interesting and largely healthy body of thought, but also (as Meese wrote the last week) the “dominant” legal project over the past 40 years, did not come from constitutional theorists. They came from people who didn’t care as much about “neutral principles” as they did about unborn children.
These social-conservatives have allied themselves with a political party (Republican) and a judicial philosophy (“conservative”) which otherwise might have embarrassed or upset them – for the sake of saving unborn children. Their investment in the movement and in the party has been instrumental and strategic.
These voters have partnered with the conservative legal movement. They know it’s time and that Dobbs is the case to finally bury Roe deer. It’s time to collect a dividend on their investment. More “half-judicial measures” (to use Meese’s expression) will not suffice.
If the court does not deliver, these social conservatives will demand their actions. Without their support, the intellectual coherence of the conservative legal movement will survive. He will still attract followers to law schools. But that will no longer be the force he was for 40 years in the policy of judicial selection. Not almost.
There is another potential risk for the conservative legal movement in Dobbs. This one is not an effect of not canceling Deer, but to do it. This is an inherent limitation of the conservative legal movement to the “success” it could possibly bring. Dobbs. This limitation concerns the role of morality in constitutional interpretation.
In Dobbs in particular, the question is whether the commitment of the conservative movement to a “neutral” interpretation of the Constitution amounts to saying that it is necessarily neutral about abortion – or whether it guarantees unborn people the same protection of the law that it guarantees to the rest of the population. we.
The crest of the conservative legal movement is indeed what Meese called “neutral principles of constitutional interpretation.” He used the expression several times in his memoir Washington post room. But what is this “neutrality” in terms of abortion and Dobbs?
“Success”, in this case according to Meese, “would put the abortion issue back where it belongs, to the people”: “Reverse Roe deer and Casey does not ban abortion. States and people will be free … to decide these questions of personal morality. “Personal morality” is at issue, of course. But abortion is first and foremost a matter of fundamental social justice.
It turns out that “neutral principles of constitutional interpretation” equates – in the legal conservative understanding of it – to abortion neutrality. Judge Brett Kavanaugh put it most lucidly during oral argument in the form of a question to the Mississippi lawyer: “[A]If I understand correctly, you maintain that the Constitution is silent and therefore neutral on the issue of abortion? In other words, that the Constitution is neither pro-life nor pro-choice on the issue of abortion but leaves the issue to the people of the States or perhaps Congress to be resolved in the democratic process? … [I]If you were to win, states, a majority of states or states still could, and probably would continue to freely allow abortion, many states; some states might do that even if you win it from your point of view, right? “
Conservative “success” in Dobbs would therefore not mean the end of the abortion, or even the beginning of its end. Dobbs would rather be the starting point of a whole new phase of the political struggle against abortion.
There is little doubt that Dobbs would quickly lead to fewer abortions in America. No less than 15 states would ban this procedure altogether. Just as many (including states as populous as California, New York, and Illinois) would allow abortion on demand – and pay for it with their tax dollars. The other states would fall somewhere in between.
In this configuration, hundreds of thousands of abortions – and perhaps a million, or more – would occur each year for the foreseeable future, especially since the prevalence of pharmaceutical home abortions makes it difficult to even apply the guidelines. restrictive abortion laws in pro-life states.
If this sobering result represented the true meaning of the Constitution, then the only way to enshrine a constitutional right to life for the unborn child would be to amend it. But the “neutral” conservative interpretation is unfounded.
The Constitution is neither “silent” nor “neutral” on abortion. The Constitution guarantees all human person the equal protection of the laws against death. Every human person begins at fertilization. This is not only true from the point of view of biological facts and philosophical inquiry. It is also the understanding of when people start among Americans who have enshrined this guarantee of equality in our fundamental charter.
Several memoirs of friends of the court filed in Dobbs make precisely this point, in the most convincing way. He will not take the court in Dobbs, although he should. And it won’t, because of the conservative legal movement’s deepest failure, which is its aversion to relying on moral truth even where the faithful interpretation of the Constitution clearly demands it.