In the final presidential debate of 2016, Donald Trump promised to appoint judges who would overturn Roe v Wade. “That will happen,” he told the moderator. Hillary Clinton promised the opposite: “I feel that at this point in our country’s history, it is important … that we not reverse Roe v Wade.” Voters went to the polls with a clear choice. In electing Donald Trump, they chose to get rid of Roe.
Now that Ruth Bader Ginsburg has died, it is the duty of President Trump to make good on his promise by nominating someone committed to overturning that unjust decision. He does not simply owe it to his voters. He owes it as well to the unborn, who deserve the full and equal protection of law.
If Trump’s judicial nominees do not deliver on his promise, the dysfunction of our politics will increase. Trump was elected because more conventional politicians had for years ignored the wishes of their constituents. Those voters wanted restrictions on immigration. They wanted an end to wars that had continued, year after year, without a clear endpoint or goal. They wanted to stop the outsourcing of American jobs to China.
America’s leadership class had ignored these concerns. They called those who voiced them economically illiterate, culturally backward and demographically irrelevant. When those people responded by electing Trump, our leaders blamed the voters, not themselves. Condemnation is always easier than introspection.
Something similar may happen if the Trump court fails to reverse Roe. And there is already reason to believe that the Court will disappoint social conservatives. In June Medical, Chief Justice Roberts declined to support limits on abortion. In Bostock, Justice Gorsuch invented a spurious right against discrimination on the basis of sexual orientation and gender identity.
Gorsuch has been a particular disappointment. He was supposed to be a high-proof conservative, a man vetted and approved by the leaders of the conservative legal movement. But that movement is either less conservative or less competent than is generally supposed. Trump was praised for “outsourcing” judicial nominations to the Federalist Society; the results are disappointing.
These setbacks are not accidental. In seeking to remake the courts, conservatives have sought to produce their own legal elite. But American elites are hostile to conservative concerns on abortion, sex and borders. So long as this is the case, creating a conservative counter-elite will be difficult. Its members will be wobbly to the extent that they are embedded within broader elite institutions. Products of the Ivies will always prize the professional and social esteem of their peers. They will share their peers’ interests and habits of mind. At best, they will be conservative elites in a weak sense: products of elite liberal institutions who happen to be conservative, not the leading members of properly conservative institutions or constituencies. Only the latter could be reliably accountable to conservatives, rather than to gentry liberals.
A more successful conservative movement will have to seek ways to limit the Court’s power, in addition to redirecting it. The legislature and the executive are responsible for interpreting the Constitution alongside the court. Conservatives should insist that these branches challenge judicial supremacy. Some promising scholarship has been conducted showing how such changes would honour our constitutional heritage. But these theories have yet to be translated from the page into reality.
Conservatives will also have to find ways to go from notional to real populism. It is one thing for a few intellectuals to support populist ideas. It is another for an organised popular movement – comparable to the former role of private-sector labour unions – to provide a real base of support for populist ideas. American Compass, a conservative organisation led by Oren Cass, has been doing promising work on reviving a healthy labour movement, which would tend to weaken the elite stranglehold on public life.
Conservatives should seek to preserve and extend the gains they have made in the courts. Those gains are limited but real. Going beyond them will require not only confirming more judges, but reviving the other branches of government. Above all, it will require building popular institutions capable of producing elites loyal to a broader constituency, rather than to the select class that passes through the Ivies.
The fight over Trump’s nominee will galvanise and polarise the electorate. Liberals are promising to burn America if Trump proceeds. That is no reason to stand down. But if future fights are to be less rancorous, we must lessen the overweening influence of the Court and the elite from which its members are drawn.