New in Civitas: "The Blue Tsunami Threatens To Drown Originalism"
· Reason
My new essay in Civitas tries to make sense of how the midterm election affects the broader conservative legal movement. Here is the introduction:
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President Donald Trump's surprise 2016 election saved Justice Antonin Scalia's seat and perhaps the Supreme Court. Over the ensuing decade, Trump appointed scores of originalist judges at all levels of the judiciary and led a political movement that supported originalist state court judges and attorneys general. But that movement came to a screeching halt with the 2026 midterm election. Indeed, the blue tsunami, largely a referendum on Trump, threatens to drown originalism. In deep red states, conservative judges were washed off the bench. Also swept from office were conservative governors who appoint judges and attorneys general who litigate in those courts. Given the large Democratic Senate majority and unfavorable maps for 2028 and 2030, a Republican Senate with the votes to confirm originalist judges may not return until 2033 at the earliest. An entire generation of talent will be wasted. A necessary condition for a successful legal movement is a successful political party. Legal conservatives need to carefully reconsider the political circumstances best suited to defend the Constitution.
The conservative legal movement has always existed in conjunction and disjunction with the broader conservative political movement. Certain long-term projects concerning the separation of powers and individual rights endure regardless of who is in office, but legal disputes arise with the exigencies of the day. The conservative legal movement will often, but not always, coalesce around current conservative political needs. Likewise, the conservative political movement will often, but not always, coalesce around the conservative legal movement. During two recent events, Justice Elena Kagan recognized this dichotomy. She observed that conservative members of the Supreme Court decide cases that are right "out of the playbook of the conservative legal movement," even as some of President Trump's policies suffer setbacks in the courts. Indeed, Trump has repeatedly expressed frustration that his appointees rule against him.
And here is the conclusion:
Many legal conservatives came to terms with voting for Trump in 2016 as a way to save the Supreme Court. Many more legal conservatives came around to Trump in 2020 based on his track record of appointing originalist judges--although I think that record is overstated. When Trump was on the ballot in 2024, some legal conservatives supported Trump for fear that Kamala Harris would pack the Supreme Court. But 2026 altered the calculus. Trump, and those candidates he endorsed, were routed in red states. Moreover, conservative judges and attorney generals were wiped from office. When the top of the ticket is no longer able to win elections, downballot judges and attorneys general do not stand a chance. Red states can only bleed for so long until they turn blue. A necessary condition for a successful legal movement is a political party that can produce viable candidates. Going forward, the path of advancing the conservative legal movement requires a political reorientation. The conservative legal movement can only survive if conservative lawyers are in public office to move the law. The blue tsunami cannot be allowed to drown originalism.
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