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2022 turned out to be the most consequential year of Donald Trump’s presidency. This year, the Supreme Court proved that its hard-right turn will be the most enduring legacy of his sorry four years in office.
Trump’s three Supreme Court appointments — the most by any president in one term since Herbert Hoover, thanks to Mitch McConnell holding Justice Antonin Scalia’s seat open for Justice Neil Gorsuch — have launched a conservative judicial revolution that has only begun to repeal many of the major constitutional advances of the last 50-plus years. The new conservative majority is issuing decisions geared at restoring a nostalgic, never-was version of constitutional history, in place of long-established precedent.
In the first half of 2022, the justices:
• reversed the landmark 1973 Roe v. Wade decision, eliminating the fundamental constitutional right to abortion
• put an end to the entire modern interpretation of the establishment clause, effectively declaring that the principle of the separation of church and state is dead
• reinterpreted the free exercise clause to require — yes, require — state funding of religious education, a revolution within a revolution
• and decided that the Second Amendment blocked states’ concealed carry laws.
Then in the fall of 2022, the court used its oral arguments in pending cases to suggest that much more is to come. The conservative justices:
• suggested that they will rule that it is unconstitutional for higher educational institutions to take account of race as part of their goal of admitting a diverse student body, something that’s been consistently held lawful since 1978
• telegraphed that they intend to hold that the right to free speech gives business owners an exemption from laws that prohibit discrimination
• and implied that they are going to overturn the part of the Voting Rights Act that, since 1965, has required states with a history of racial discrimination in districting to create majority-minority districts so as not to stifle the power of Black voters.
The final decisions in these and other cases won’t come until 2023, but the fix is already in.
What unifies this conservative revolution is a radical vision of the restoration of constitutional law to the state it was in before the liberal decisions of the Warren court created modern constitutional law more than 50 years ago. But this conservative court doesn’t only want to roll back the clock. They also want to change how judicial decisions are made: Instead of relying on precedent and principle, they insist on using a nostalgic version of history to decide major cases. And like most forms of nostalgia, the court’s approach is less historical than pseudo-historical.
In driving a knife through the heart of church-state separation, the conservative majority substituted a vague, undefined test based on “historical practices” for long-established Constitutional doctrine. In their gun rights case, once again they purported to rely on “history” that was cherry-picked based on a wildly selective interpretation of “evidence” going back to the Middle Ages. And in the abortion case, they manipulated and misconstrued historical sources from English common law that allowed abortion before “quickening” to conclude there was no historically grounded right to an abortion.
Nostalgia is a feeling we have for a past that is either dimly remembered or, more often, reimagined. The court’s forays into history in 2022 were noteworthy for their distortion of historical facts and trends. Plenty of professional historians submitted friend of the court briefs in many cases offering responsible, accurate accounts of history. The conservatives ignored those briefs or used lawyers’ tricks to explain away the inconvenient facts proffered by the historians. That’s easy for them to do because the “history” the conservatives are aiming at isn’t a warts-and-all account of the past but an idealized fantasy that suits the conservative outcomes they want.
What makes this conservative majority the Trump court is of course partly the fact that Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh were appointed by Trump. But the better reason to identify the revolutionary conservative majority with Trump is the similarity between its pseudo-historical nostalgia and Trump’s own rebarbative slogan, Make America Great Again. The MAGA ideology, at its core, is very obviously its nostalgic appeal for an English-speaking, Christian America full of manufacturing jobs for White men, homemaker status for White women, and subordinate or invisible status for people of color.
Trump was so unskilled as president that he couldn’t do much beyond symbolic gesturing to re-create his idealized vision of an America that never was. Unfortunately, the same is not true for the Supreme Court. As the late, great Justice William Brennan used to say, wiggling fingers of his hand, “Five votes can do anything around here.”
Constitutional law is a construct, one controlled by a small group of people who can make it mean whatever they want subject only to their collective consent. To be sure, to be put on the court, they need to be nominated by a president and confirmed by the Senate. Yet once they are confirmed, they can reshape constitutional law by reinterpreting the Constitution, and there is nothing anyone can do about it except to threaten constitutional amendments (vanishingly difficult to accomplish) or court-packing (not quite as hard, but close).
The current conservative majority’s constitutional philosophy, like MAGA, invents an idealized past and strives to bring it back. It talks the talk of history without being responsible to reality — and without considering seriously the ways our country and our Constitution are in fact much greater now than they were in the old days. They often use the term “historical test,” but it would be more accurate to call it a doctrine of nostalgia.
Dobbs v. Jackson Women’s Health, the abortion case, powerfully illustrates this nostalgia doctrine. To the conservative justices, Roe v. Wade was the moment the liberal court went most awry, discovering a constitutional right to choose based on a concept of privacy and autonomy that isn’t written explicitly in the Constitution but was found by the justices in the “penumbras and emanations” of various provisions. The court’s conservatives talk about Dobbs as if it will take us back to a time when individual states made reasoned, democratic decisions about when and whether to allow abortion.
The reality, of course, was far different. Before 1973, states did not deliberate thoughtfully about abortion law. Instead, illegal abortions took place in all states. States that banned abortion explicitly rarely enforced their laws, which instead functioned as symbolic prohibitions that ensured abortion would remain unsafe and unregulated. Women who became pregnant and did not want to carry their pregnancies to term had to add navigating the secret, illegal network of abortion providers to the physical and emotional challenges of unwanted pregnancy. Women were effectively second-class citizens.
The Dobbs decision has also wreaked havoc on a line of precedent that began with the right to educate your children as you see fit (1925’s Pierce v. Society of Sisters) and then ran through the right to use contraception (1965’s Griswold) all the way to the right to have sex with the partner of your choice (2003’s Lawrence) and ultimately to the right to marry the person you want (2015’s Obergefell).
According to the logic of all these cases, the way the courts determine whether you have a substantive right under the due process clause of the Constitution is by asking whether the government may restrict your autonomy and dignity. As the court expanded all these rights over the course of nearly a century, it charted an evolutionary path of gradual, Burkean rights-expansion.
In Dobbs, however, the conservative majority declared that the right way to figure out substantive due process rights was by a historical test of what rights existed when the 14th amendment was enacted. Logically, therefore, Dobbs does call into question the marriage right, the contraceptive right, and other fundamental rights recognized under the substantive due process doctrine.
Justice Samuel Alito lamely suggested in his opinion that abortion was “unique,” and Kavanaugh wrote a separate concurrence to suggest he wouldn’t be voting to overturn gay marriage anytime soon. But these reassurances should be cold comfort to anyone who sees the nostalgia doctrine for what it is, namely a game plan to roll back the clock to an era when personal freedom depended on which state you lived in.
The church-and-state cases are even more egregious examples of fake history. From the time of the nation’s founding, neither state nor federal governments have funded church institutions such as schools that taught religious doctrine. That was part of the core meaning of not establishing a state religion, alongside a ban on coercing prayer. Today, the court’s pseudo-history has flipped that picture on its head. Under the guise of claiming that the free exercise clause should be understood as an antidiscrimination provision, the court now says that if the state funds private secular education it must fund religious education. By that bizarre reasoning, the establishment clause itself violates the free exercise clause.
I could go on — and in June, when the conservative majority delivers its next set of body-blows to basic rights, I am sure I will do just that. For now, at year’s end, it is enough to say that 2022 will go down in constitutional history as the year the Trump court first made its mark. When Trump himself has come to be seen as a one-term outlier, the conservative revolution being undertaken by Trump’s Supreme Court justices will remain as his lasting legacy.
More From This Writer at Bloomberg Opinion:
• Midterms Highlight Supreme Court’s Threat to Black Votes: Noah Feldman
• The Supreme Court’s Other Conservative Revolution: Noah Feldman
• Supreme Court Pits Free Speech Against LGBTQ Rights: Noah Feldman
(Corrects to say in second paragraph the most in one term.)
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
More stories like this are available on bloomberg.com/opinion
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