Fall is not just a time for campfires and s’mores—it’s also when the Supreme Court starts its new term. This session comes at an especially significant time for conservatives, given that in just the last few years almost all of the most infamous cases that have been driving legal conservatism for roughly two generations have been overruled or substantially narrowed. Indeed, the Supreme Court has repudiated and formally overruled Lemon v. Kurtzman (1971), Roe v. Wade (1973), and Chevron v. NRDC (1984)—cases that, respectively, represent church-state separationism, abortion rights, and the administrative state. Likewise in SFFA v. Harvard (2023), the Supreme Court sharply criticized and substantially narrowed Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003), the two doctrinal pillars of affirmative action.
Such success, however, raises an unnerving question: What’s next? That is, what should drive the conservative legal movement now that its biggest enemies have seemingly been vanquished?
Before we can supply an answer to that question, however, we must first give some background on the conservative legal movement, beginning with an important distinction between legal and political conservatism, which will show that legal conservatives must create new strategies that are tailored to our current political and social moment.
A Way Forward