[Movement judges as not interchangeable with partisan judges.
Unlike a partisan judge, the movement judge will be tempted to advance
a movement’s goals even when doing so may harm their political
party’s electoral prospects.]
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‘MOVEMENT’ JUDGES METE OUT ‘MOVEMENT’ JUSTICE  
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Robert L. Tsai and Mary Ziegler
June 25, 2023
Politico
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_ Movement judges as not interchangeable with partisan judges. Unlike
a partisan judge, the movement judge will be tempted to advance a
movement’s goals even when doing so may harm their political
party’s electoral prospects. _

Supreme Court - Sepia, by IslesPunkFan (CC BY-NC 2.0)

 

We’ve had a year now to contemplate the Supreme Court’s ruling
in _Dobbs v. Jackson Women’s Health Organization_ and what led up
to the justices’ decision to overturn 50 years of jurisprudence and
end the constitutional right to abortion. Many abortion rights
supporters and others on the left blame the court’s
Republican-appointed majority, seeing those judges as too politically
partisan.

But we see something a bit different going on. To really understand
why the Supreme Court overruled _Roe v. Wade_, we think it’s
crucial to see _Dobbs_ as the triumph of two social movements and
the rising influence of a distinctive kind of judge.

First, there is the grassroots anti-abortion movement, which has long
been in the trenches and seeks the elimination of elective abortions
and recognition of fetal personhood. Second, there’s the elite legal
conservative movement, which is motivated to restore what it describes
as the original meaning of the U.S. Constitution. Since at least the
1980s, when conservative legal icon Robert Bork denounced _Roe _as
an egregious example of judicial policymaking, these legal elites have
also called for the undoing of abortion rights.

These two movements have occasionally clashed, but as we argue at
greater length in a forthcoming law review article
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shows what happens when they work together, and when their foot
soldiers and close allies — including what we call “movement
judges” — take actions that facilitate movement goals.

Movement judges have a different mindset than other types of judges,
and that’s true whether they come from the political left or the
political right. A movement judge is less likely to defer to experts
than a technocratic one and more likely to think of issues in terms of
values. A preservationist tries to work with existing precedent as
much as possible and cares about how the institution is perceived. By
contrast, a movement judge is focused on what a mobilized subset of
people want and is willing to overturn precedent to get there.

Sometimes, the public, incorrectly, views movement judges as
interchangeable with partisan judges. But partisan judges are
something different. Partisan judges have been a part of American
politics since the nation’s founding. The rise of national parties
ensured that the process of selecting federal judges would be
controlled by partisan forces, and the individuals appointed to
judicial positions would be vetted according to some partisan
considerations. For instance, after losing the 1800 presidential
election, the Federalist Party sought to install loyal Federalists in
newly created judicial positions.

Unlike a partisan judge, the movement judge will be tempted to advance
a movement’s goals even when doing so may harm their political
party’s electoral prospects. More so than their counterparts,
movement judges are prone to speak like those whom political
scientists and historians call “movement” figures
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it comes to politically salient legal matters.

As social and intellectual movements have become more effective in
shaping constitutional law, they have built their own, unmediated
relationships with jurists and even socialized them to act in ways
that might cut across the grain of partisan or institutional
interests. The Republican Party wants to maintain partisan influence,
and judges who harbor preservationist instincts want to maintain the
judiciary’s legitimacy. By contrast, social movements are focused on
their own long-term ideological goals. When a judge signals
receptivity to movement arguments and delivers an ambitious ruling
that advances them, that judge behaves as a movement judge.

What we are seeing now on the Supreme Court is a bloc of justices
receptive to conservative social movements on key legal issues, and
that raises the risk of judge-driven oligarchy: the recalibration of
constitutional law for the benefit of the few over the interests of
the many. When that bloc has stuck together and a movement mindset has
prevailed, this development has already yielded an
unprecedented Second Amendment ruling
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freezes policymaking authority over dangerous weapons at American life
circa 1868. The same majority is responsible for
the _Dobbs_ decision, which leaves the federal constitutional rights
of pregnant people over their own bodies to that which existed in the
late 19th century — which is to say, no rights at all.

Neither ruling was popular with a majority of Americans, and neither
seems to be an accident. Instead, both raise the prospect of the
nation’s highest court closely aligning with, and acting in tandem
with, movements on the political right.

THE ORIGINAL _ROE _DECISION, authored by Justice Harry Blackmun in
1973, was not a movement decision but rather a technocratic one:
Drawing on existing precedents which had established a right to
privacy, the court sought to create a legal space for a pregnant woman
and her doctor to make difficult life decisions. Similarly,
in _Planned Parenthood v._ _Casey _in 1992, centrists appointed by
Republican presidents affirmed the original _Roe _decision to
respect a woman’s right to choose but reworked existing rules to
give more room for a community both to regulate abortion and to try to
dissuade a person from ending the pregnancy.

_Dobbs_ represented a legal and political sea change. By wiping
out _Roe_ and _Casey_, Justice Samuel Alito’s decision endorsed
many ideas long advanced by the anti-abortion movement — including
the claim that _Roe _distorted other areas of the law, the assertion
that supporters of abortion rights harbor eugenic aims and the
argument that _Roe _is to blame for the polarization of American
politics.

It’s worth remembering that there was no pressing need for the
Supreme Court to hear a case on 15-week abortion bans last year, no
circuit split about their constitutionality — indeed, very few
states had introduced such laws in the first
place. _Dobbs _dismantled _Roe _on a timeline that was
advantageous to the anti-abortion movement, even though it was plainly
damaging to the Republican Party and to the reputation of the court
itself.

Substantively, _Dobbs _codified a conservative grassroots version of
the past. Despite their professed neutrality, the members of the
majority rejected the possibility that the right to abortion could be
deeply rooted in the nation’s history and tradition, despite
evidence to the contrary and notwithstanding the consensus of leading
historians in the academy
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Instead, the opinion asserted that “abortion had long been a crime
in every state.” To support its judgment and narrative, the court
relied exclusively on a trio of scholars whose only historical work
addressed the problems with _Roe _itself, scholars who held key
roles in grassroots anti-abortion groups or attended events on
reversing _Roe _hosted by leading anti-abortion organizations.

_Dobbs _also echoed movement arguments in brushing aside the
importance of adhering to precedent. A technocratic judge would have
cared about what the elimination of a right in this context would do
to the medical profession, while a preservationist would have worried
about the risk to vulnerable women or how citizens perceive the rule
of law. Indeed, Chief Justice John Roberts, who has sometimes behaved
as a preservationist, wrote that he would have preferred to continue
chipping away at _Roe_ without overruling it completely.

By contrast, Alito not only insisted that the reasoning
of _Roe _and _Casey _were deeply flawed, but also invoked a
comparison popular in movement circles: that _Roe _should be reviled
as much as the court’s infamous segregation decision, _Plessy v.
Ferguson,_ a ruling that permitted racial apartheid in America. Even
the majority’s response to concerns about the legitimacy of the
court echoed movement logic. In _Casey_, the court had declined to
reverse _Roe_ partly out of concerns about the damage such a
reversal would do to the court as an institution. In _Dobbs_, Alito
first echoed a point made by anti-abortion activists since the 1980s
— that it was _Roe_ that had polarized politics and damaged the
court — and then dismissed such concerns before erasing 50 years of
precedent.

Because of its conservative ambition and general indifference to the
effects of the ruling on anyone beyond fetal life,_ Dobbs_ has
seemingly played a role in fueling the public’s growing disapproval
of the Supreme Court. Americans are not losing faith in the court
merely because most of the justices are conservative — after all,
the court has had a conservative majority appointed by Republicans for
decades_. _Rather, voters rightly suspect that there is less and less
separation between some of the justices and the social movements that
litigate issues before them.

MOVEMENTS ARE SUSTAINED not only by ideas and grassroots figures, but
also by patrons and benefactors with economic means or formal power
— such as politicians and judges — who are receptive to movement
arguments, rhetoric, facts, methods and goals. Recent revelations of
lavish financial benefits and valuable economic opportunities directed
to Supreme Court justices and their relatives, particularly Alito and
Justice Clarence Thomas, have raised important issues of legality and
propriety. But they also reveal how parties, movements and the wealthy
exert influence upon judges: through social ties, financial benefits
and public esteem.

The rise of presidents such as Donald Trump who behave more like
movement leaders
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party chiefs increases the odds that more movement figures will become
judges. Trump, or other presidential aspirants who might follow his
example, hope to appoint jurists based on projected sympathies. The
transformation of the Supreme Court suggests that the former president
had some success.

The closer relationship between particular movements and the judiciary
makes sense of seemingly disparate phenomena, including Trump’s
decision to outsource selection of federal judges to key figures
within the conservative legal movement, the stunning decision to
overturn _Roe _last year and reports of close associations and
financial benefits moving between advisers on judicial appointments,
elected officials and the families of judges.

It also helps explain the growth of a network of fellowships and
training conferences aimed at cultivating future movement jurists. For
example, the Alliance Defending Freedom, an organization that promotes
“a distinctly Christian worldview” of the law, operates the
prestigious Blackstone Legal Fellowship, which links Christian law
students and elite faculty. To date, the fellowship’s graduates
include judges and professors; Justice Amy Coney Barrett did five paid
lectures for fellows before joining the Supreme Court. And it helps
understand why prominent members of these conservative networks make a
point of publicly praising justices for rulings they approve of.

We see this pattern at work with U.S. District Court Judge Matthew
Kacsmaryk, who provides perhaps the clearest recent example of a
movement judge during the ongoing controversy over the availability of
mifepristone, a drug used in over half of abortions in the United
States. Many expected Kacsmaryk to be a movement judge, based on his
prior anti-abortion activism and a ruling requiring minors at clinics
receiving federal funding to get parental consent before receiving
birth control. For this reason, the Alliance Defending Freedom chose
to file its suit challenging the legality of mifepristone in Amarillo,
Texas, where Kacsmaryk presides.

Kacsmaryk met those expectations and then some. In a sweeping order
handed down in April, Kacsmaryk ruled that the FDA lacked authority to
approve the abortion pill and blocked access to it across the country.
As the judge noted, no court had ever before attempted to undo FDA
approval of a drug, much less 23 years after the fact. Kacsmaryk’s
legal rationale was also aggressive, suggesting that the Comstock Act,
a 19th century anti-vice law not used in decades, served as a de facto
ban not just on mifepristone but on all abortion.

To a greater extent than Alito in _Dobbs_, Kacsmaryk embraced the
language and research of anti-abortion organizations. Adopting the
rhetoric of movement figures, he broadly applied the term
“abortionists” to health care workers who participate in the
termination of pregnancies, including someone who prescribes
mifepristone. He also treated as a cognizable legal injury the mere
possibility that someone might experience emotional trauma from
viewing an aborted fetus — potentially throwing the courthouse doors
wide open to any activist who might remotely object to
abortion-related policies. Kacsmaryk’s opinion also nodded toward
more ambitious movement goals, citing an amicus brief by John Finnis
and Robert George, who have advanced a constitutional argument
grounded in fetal personhood.

Kacsmaryk went too far even for a panel of the deeply conservative
Fifth Circuit, which opted to reimpose restrictions on mifepristone
from 2016 rather than withdraw the drug altogether. And there is some
sign that the Supreme Court may have some issue with Kacsmaryk’s
ruling too — the justices decided to preserve some access to
mifepristone while the litigation continues.

As we wait to see how far the court is willing to go, Kacsmaryk’s
ruling is a vivid reminder of how radically differently a movement
judge can behave, with little care about being reversed by a higher
court and no intention of deciding only what is necessary to resolve
the case before them.

ONCE, CONSERVATIVES WARNED of judicial activism. This critique gained
currency in the 1960s when Earl Warren was chief justice and the
Supreme Court was reading the open-textured provisions of the
Constitution that promise things like liberty and equal protection to
establish new procedural protections for criminal defendants and
enforcing desegregation orders. When some Republican appointees joined
Democratic counterparts to expand those rights, conservative activists
insisted that judges were out of touch with the American people.
Progressives, in turn, sought to justify the Warren court’s legal
creativity by insisting that guarantees of equality and liberty were
as important to a functioning democracy as majority rule.

Now, as the right has become more dependent on judges to entrench
favorable policies and create obstacles to reform
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conservatives have looked to close the distance between movements and
the courts.

This shift has taken decades. Leaders of the conservative legal
movement weren’t very interested in abortion at first, and the
anti-abortion movement had struggled to influence them. In the 1980s,
the early Federalist Society included lawyers with a variety of views
on abortion and had sought to play down an issue that seemed
unnecessarily divisive.

Furthermore, in the academy, conservative thinkers wanted to focus on
methods, seeking to develop a version of constitutional originalism or
textualism that might pass for a legitimate judicial approach rather
than just window dressing for conservative outcomes. Anti-abortion
activists, known for expansive claims about a constitutional right to
life, rowdy rallies and even law-breaking blockades, did not seem to
be the kind of allies that the Federalist Society needed. In the 1980s
and 1990s, anti-abortion lawyers worked to cement their ties with the
GOP and the conservative legal movement by stressing textualist
arguments popularized by heroes of the Federalist Society like Robert
Bork and Antonin Scalia: _Roe _had no basis in the Constitution’s
text or history.

But soon abortion opponents realized a judge’s party affiliation was
inadequate to guarantee success for their cause. In _Casey_, which
was decided in 1992, three Republican appointees — David Souter,
Sandra Day O’Connor and Anthony Kennedy — wrote a joint opinion
preserving what the court called the essence of _Roe_.

_Casey _prompted anti-abortion activists to refine what they wanted
in nominations to the federal bench. Simply relying on Republicans to
identify the usual partisan judges had failed. Thomas struck many as
an example of the ideal jurist. By the time of his confirmation,
Thomas was not only a beloved figure in the conservative legal
movement, he also routinely denounced legal abortion, which he
considered to be no different from infanticide. Conservative PACs
bankrolled pro-Thomas ads lambasting Democrats who had been critical
of the nomination.

Thomas’ defiant response to the sexual harassment accusations raised
by Anita Hill — he described the scrutiny as a “high-tech
lynching” — struck anti-abortion leaders as important, too. It was
a proxy for Thomas’ ideological commitment to conservative causes
and his refusal to back down. He modeled a suspicion of institutions
and a distrust of elites that anti-abortion activists shared. For
activists, the question became how to identify or cultivate more
judges like Thomas — ideologically committed and willing to buck
both legal orthodoxy and popular politics.

Abortion opponents gained an ally in Leonard Leo, an attorney who had
helped Thomas during his 1991 confirmation hearings. By 2001, Leo had
become the head of the Federalist Society’s lawyers’ division, was
profoundly opposed to legal abortion and wanted to dethrone the
American Bar Association from its traditional role rating judicial
nominees — which activists saw, as Leo put it, as rejecting
conservative judges “on ideological grounds.” In building new
networks between movements and judges, and devising more sure-fire
selection methods, Leo became both a patron and an entrepreneur.

Following the election of George W. Bush, Leo joined three other men
in a group that called itself the Four Horsemen; the group included
not only Republican legal veterans like C. Boyden Gray and Edwin Meese
III but also prominent Christian conservative Jay Sekulow of the
American Center for Law and Justice. Leo, who had long worked as a
Republican Party liaison with Catholics, helped steer John Roberts’
Supreme Court nomination through the Senate.

Sandra Day O’Connor’s 2005 retirement led to an inflection point
in constitutional politics. Leo initially tried to tamp down
conservative anger about the selection of Harriet Miers, a close
confidante of the president who had served as Bush’s White House
counsel. But anti-abortion activists feared that Miers would turn out
to be just another partisan judge or preservationist who might uphold
the precedent of _Roe_.

Social conservatives insisted on a nominee who resembled Thomas —
someone with a more clearly defined jurisprudential approach and
ideological bent with the fortitude to withstand to public criticism.
When Miers stepped aside, Bush selected Alito, a very different kind
of nominee. Alito rarely missed the chance to tell people about his
deep conservative beliefs or his admiration for conservative icon
William F. Buckley Jr. Conservative movement leaders regarded Alito as
a safer bet — someone expected to disregard the kind of backlash
that might follow the reversal of a decision like _Roe v. Wade._ As
a judge, he frequently gave speeches before Christian organizations
that reinforced a sense of shared purpose.

Leo, meanwhile, went on to gain further influence, helping choose the
three Trump Supreme Court picks who would ultimately overturn _Roe_.
The money has also flowed: He obtained a $1.6 billion donation
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year from a wealthy conservative businessman named Barre Seid for his
legal network, likely the largest political gift in American history.

A CRITICAL FACET of this story is that a number of conservative
grassroots objectives are broadly unpopular, from the recognition of
an almost unlimited right to bear arms to the recognition of fetal
personhood that would make abortion unconstitutional nationwide. This
is an important reason why judicial entrenchment is so attractive to
minoritarian interests: They can win by appealing to a handful of
judges even when they lose decisively and repeatedly through the
political process.

Conservatives have often complained that the Warren Court was
“activist” on civil rights, and it’s true that during the Warren
Court era, social movements also prodded the Supreme Court from the
outside. But most of the key rulings of that era were not authored by
movement judges but by appointees who kept their distance from civil
rights leaders. While certain decisions were certainly controversial,
they were not the product of a political restoration effort or single
methodology. While these jurists may have had sympathy for certain
movements, they also cared deeply about the legitimacy of the court
and explicitly considered the practical ramifications of its decisions
— including the potential for resistance.

Abortion again serves as a powerful example of how the public might
respond to the results of movement judging. Opponents of reproductive
freedom have lost six of six ballot initiatives since
the _Dobbs _decision, and Democrats fared better than expected in
the 2022 midterms in part because of the abortion issue. The prospects
for a national statute prohibiting abortion look dim at the moment.
And yet conservatives hope that judges will revive an interpretation
of the Comstock Act rejected since the 1930s precisely because voters
would never embrace such an outcome, especially at a time when women
can vote.

The more that activists see judges as an alternative to winning
popular support, the more judges will serve as conduits for
conservative movement goals of economic libertarian activism,
anti-abortion policies, expansive gun rights, and efforts to stymie
anti-corruption and campaign finance reform measures. These targeted
attempts to shape constitutional law now extend not just to judicial
elections in key states but also the selection of new federal judges
and the lobbying of sitting jurists, even on the Supreme Court.

Moreover, as long as cozy connections between judges and political
actors remain poorly regulated and structural conditions remain
unchanged, judges will remain open to capture by narrow interests and
movements.

A few months after the _Dobbs_ ruling, four of the justices who
voted to overturn _Roe _— Alito, Barrett, Brett Kavanaugh and Neil
Gorsuch — appeared at the annual Federalist Society meeting. They
were given a standing ovation. A fellow conservative jurist onstage
said of _Dobbs_ that he could not think of “any decision on any
court by any judge” for which Alito could be “more proud.”

As attendees turned to Alito and showered him with applause, the
movements’ circle of political mobilization, judicial interpretation
and social esteem became complete.

_Robert L. Tsai [[link removed]] is professor of law
at Boston University and the author of Practical Equality: Forging
Justice in a Divided Nation
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_Mary Ziegler [[link removed]] is Martin Luther
King Professor of Law at UC Davis and the author of Roe: The History
of a National Obsession
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