Justice Neil Gorsuch (Andrew Harrer/Bloomberg via Getty ImagesThe conservative movement in law has changed substantially in the last half century. At the beginning it was a reactionary movement. The core consensus was that the Warren Court has been out of control, acting more like politicians focused on changing society rather like justices following the law. Insofar as conservatives even had a theoretical critique, its essence varied. One was that Court was activist in that it failed to pay sufficient deference to the political branches. A second was that it abandoned the craft of law, generally defined as following precedent or neutral principles that can be derived from precedents and legal process. A third was that the Court had abandoned the principles of the Founding or intent of the Framers. A final was substantive: the Court’s decisions, particularly in the area of criminal justice, were simply too liberal.
Fifty years on, the movement looks completely different in theory, power, and effect. As to theory, public meaning originalism, albeit of different varieties, dominates. While there are disagreements about the degree of deference, if any, owed the political branches, there is a growing consensus that this question is just another one to be answered by originalism. Perhaps the most important unsettled question is the place of precedent in originalism. But the view that precedent should be a generative force in law is no longer widely supported by theorists on the right. And since conservatives are now adherents of originalism, their methods sometimes support liberal results, particularly in the area of criminal justice.
As to power, during the Warren years, only a very few conservative scholars of public law worked in its shadow. Now originalism has many advocates in the academy and outside, and almost all conservative scholars who publish on the theory of constitutionalism are originalists.
