Conservative judging since the 1980s—and the paradox of a movement that won by denouncing its own reflection
By a regulated optimist who grades in pencil, votes with both hands, and still believes maps should tell the truth.
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I. A parable about mirrors
The term "judicial activism" is the judiciary's favorite insult and our public square's dullest knife. Everyone uses it to describe the decisions they don't like; few define it before throwing it. If you are tired of slogans, try a simpler test: a court is activist when it reallocates power—away from voters toward judges; away from expert agencies toward courts; away from national problem-solving toward narrower sovereignties. By that yardstick, the conservative legal project since the 1980s has been—quietly, skillfully—one of the most activist enterprises in American history. It changed who decides.
This is not a morality tale about heroes and villains. It is an engineer's logbook. I will mark the pivots: first the Rehnquist years that shrank congressional power and elevated state immunity; then the Roberts years, in two acts, that finished the job—recasting rights through "history and tradition," dialing down democracy's guardrails, and inviting judges to overrule technocrats on questions once left to agencies. The paradox is elegant: a movement that long decried activism won by practicing it with a straight face.
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II. The Rehnquist blueprint: narrow the pipes
The revolution began by trimming Congress's reach and thickening the shields around states. • Commerce Clause cutbacks. In United States v. Lopez (1995) the Court struck down the Gun-Free School Zones Act as beyond Congress's commerce power—the first such limit since 1937. Morrison (2000) then invalidated a key civil-remedy of the Violence Against Women Act on similar grounds, despite Congress's record on nationwide economic effects. The thrust was unmistakable: national problems would get state-sized tools. • Sovereign immunity as a wall. Seminole Tribe v. Florida (1996) held Congress could not use Article I to abrogate state sovereign immunity; City of Boerne v. Flores (1997) limited Congress's power to enforce the Fourteenth Amendment, kneecapping the Religious Freedom Restoration Act as applied to states. Together, these cases shifted constitutional gravity away from Congress and toward courts and states.
You could call these decisions "restrained." They were nothing of the kind. They invalidated national statutes and re-wrote working assumptions about federal capacity, replacing New Deal deference with 1990s skepticism. That is activism with a pocket square.
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III. The Roberts years, Act I (2005–2019): narrow holdings, big consequences
Chief Justice Roberts arrived with a promise of modesty and unity. The Court often wrote narrowly. But even the "tame" phase moved major furniture. • Campaign finance as speech arithmetic. Citizens United (2010) and McCutcheon (2014) de-regulated parts of the campaign-finance regime on First Amendment grounds, altering how money speaks in politics. That is not small theory; it is big plumbing. • Voting rights declawed. Shelby County v. Holder (2013) neutralized the Voting Rights Act's preclearance formula—ending automatic federal review of changes in covered jurisdictions and pushing fights into slower, after-the-fact litigation. Rucho v. Common Cause (2019) then declared partisan gerrymandering non-justiciable in federal court. Those two choices—remove the federal veto and exit the field—reallocated democratic power toward state actors and away from federal referees.
You can call that "leaving politics to politics." Practically, it meant fewer brakes on entrenchment and a steeper climb for communities seeking timely relief.
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IV. The Roberts years, Act II (2020–2025): cut the main lines
After 2020, the tone changed. The Court stopped whispering.
A. Rights by "history and tradition" • Guns. Bruen (2022) replaced interest-balancing with a historical analogue test and struck New York's "proper cause" requirement for public carry. Rahimi (2024) later upheld the domestic-violence gun ban but kept the history-first method at center stage. The jurisprudence now rewards archives over empirical safety records. • Abortion. Dobbs (2022) overruled Roe and Casey, returning abortion to state legislatures and detonating half a century of reliance interests. Whatever your priors, that is activism by any definition that tracks overruling and withdrawal of federal rights. • Speech vs. equality. 303 Creative (2023) carved out compelled-speech protection against a state antidiscrimination law, extending an expressive-services exception into the digital marketplace. The terrain for civil-rights enforcement shifted overnight.
B. Democracy's guardrails loosened, then one surprise • The Court's earlier Rucho abstention hardened the message: federal courts would not police partisan gerrymanders. But Allen v. Milligan (2023) unexpectedly reaffirmed Section 2 of the Voting Rights Act in a map case out of Alabama, forcing an additional majority-Black district and rippling into Louisiana and Georgia. The guardrails remain patchy—a constitutional shoulder on one side, a ditch on the other. • And now Louisiana v. Callais (2025) threatens to revisit even Section 2's foundations. The Court has asked for re-argument on questions that could debilitate or recast the statute's core results-test; a ruling this Term could redraw the law of vote dilution for a generation. Watch this docket like weather.
C. The administrative state, disassembled • West Virginia v. EPA (2022) constitutionalized the major questions doctrine, demanding clear congressional text for agency actions of vast economic and political significance. • Loper Bright (2024) then overruled Chevron, instructing courts to pick the "best" reading of ambiguous statutes rather than deferring to agencies. Corner Post (2024) let new plaintiffs challenge old rules when they're first injured, and Jarkesy (2024) forced the SEC (and perhaps others) into jury trials when seeking civil penalties. Translation: more power to judges, more litigation leverage to regulated parties, more friction for public-interest regulation.
D. The presidency, re-insulated • Trump v. United States (2024) recognized presumptive criminal immunity for a former president's official acts, remanding for line-drawing between official and private conduct. Whatever the final boundaries, prosecuting presidential abuse got harder.
Add in Bush v. Gore (2000) for intellectual honesty: the conservative legal movement's most famous emergency intervention was not shy about choosing the nation's path. The per curiam opinion ended the recount and decided a presidency. If that isn't power reallocation, the word has no meaning.
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V. "Activists" then and now: the hypocrisy problem
Conservative lawyers spent decades accusing liberal courts of activism. Some of that critique had force—Warren-era innovations did move doctrine rapidly. But the modern record is not a morality play of restraint versus excess. It is a trade: deregulate campaigns, narrow congressional power, relax federal democracy protections, move constitutional tests from empirics to history, and shift technocratic policymaking to judges.
Even defenders of the Roberts Court's fidelity to precedent concede that stare decisis is a malleable tool, deployed and trimmed to suit the project at hand. And scholars have cataloged "stealth reversals"—decisions that functionally overrule without saying so—another way to move fast without headlines.
If you still insist that "activism" is what your opponents do, you are not analyzing; you are branding.
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VI. How it changed Mondays (not just casebooks)
Agencies must legislate on paper. Post-Loper Bright, rule writers can no longer count on Chevron's cushion. Draft to withstand de novo review; tie every verb to statutory text; build a record as if a district judge will live in it for years. Expect late-arriving challenges under Corner Post, and plan enforcement menus post-Jarkesy.
States own more risk—good and bad. With Rucho fencing federal courts off and Shelby County ending preclearance, states have a freer hand in districting until Section 2 suits (still viable after Milligan) land years later. Callais could rewrite even that last line.
Rights turn on archives. Litigators now craft gun and speech cases around eighteenth-century analogies (Bruen, Rahimi, 303 Creative). Historians are expert witnesses; libraries are armories. Even supporters of the turn are asking the practical question: are judges good historians?
The emergency docket shapes reality. From SB 8 to pandemic orders, the Court's "shadow docket" has grown into a policy lever—fast, thinly reasoned, consequential. You don't have to share Stephen Vladeck's alarm to admit the facts: more emergency matters, bigger effects, less daylight.
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VII. A short defense of candor
If you like the outcomes, own the method. Say aloud that you prefer judges over agencies on ambiguous statutes; that you prefer history over cost-benefit in rights; that you prefer state power over federal remedies in election law. There are coherent philosophies behind each choice. The problem is not the ideas; it is pretending they are the opposite of activism while they lift doctrine off its hinges.
Honest conservatism doesn't need euphemism. It needs courage and a blue pencil.
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VIII. A better equilibrium (from a regulated optimist)
• Congress must speak clearly. If major questions and anti-deference are the law, then the legislative branch must draft with verbs that bite ("EPA shall set sector-wide emission performance standards not less stringent than …"), fund the translators who write them, and accept that ambiguity is now defeat in slow motion. • Agencies should publish "post-Chevron" templates. Codify a record checklist—textual anchors, alternatives considered, quantified trade-offs, and a Skidmore-ready expertise section judges can respect even as they refuse to defer. • States should build democracy guardrails at home. With federal courts out of the partisan-gerrymander business, the action moves to state constitutions, ballot-initiative reforms, and independent commissions. Organize there; win there. • Courts should practice transparent urgency. Emergency orders that alter the status quo for millions (think SB 8) deserve brief explanations, clocked sunsets, and fast merits calendars. If you must swing a hammer at midnight, at least turn on the light. • Law schools: teach the archive. If rights turn on "history and tradition," then the archive must be complete—including Spanish and French legal sources that shaped water, property, and municipal practice in the Southwest and Gulf. Our national legal memory is bilingual; our briefs should be too.
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IX. Three vignettes from the near future
The agency that learned to write like a statute. A climate rule survives major questions scrutiny because Congress—at last—said the quiet part loud. The D.C. Circuit cites the preamble's textual exegesis with near-bored approval. Boredom is victory.
The map that passed both tests. A state adopts an independent redistricting commission under its constitution. When sued in federal court, Rucho blocks the partisan claim; when sued under Section 2, the commission's record of community input and racially fair performance metrics carries the day—even under a narrowed doctrine.
The litigation that began with a librarian. In a Second Amendment case, a trial judge credits a historian who surfaced Spanish-era firearms regulations in New Mexico towns and a territorial ban in both English and Spanish newspapers. The analogy analysis is suddenly less cosplay and more history. The opinion reads like a civics class with footnotes.
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X. Epilogue: Courtesy, again
I grade in pencil because the world changes. So do courts. But when a Court moves this much this fast, the least we owe one another is plain speech about what is happening: a transfer of decisional authority—from administrators to Article III judges; from balancing tests to analogies; from national remedies to state discretion. You may celebrate that shift or lament it. Just don't call it restraint while carrying a saw.
A republic is the habit of telling the truth in public. Let's start there, even about our mirrors.
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Sources (validated)
• Commerce & federalism turn: United States v. Lopez (1995); United States v. Morrison (2000).
• State immunity & Congress's §5 power: Seminole Tribe v. Florida (1996); City of Boerne v. Flores (1997).
• Campaign finance deregulation: Citizens United v. FEC (2010); FEC case summary.
• VRA and partisan maps: Shelby County v. Holder (2013); Rucho v. Common Cause (2019); Allen v. Milligan (2023).
• Rights by history: NYSRPA v. Bruen (2022); United States v. Rahimi (2024).
• Abortion: Dobbs v. Jackson Women's Health (2022) (opinion & analysis).
• Speech vs. equality: 303 Creative LLC v. Elenis (2023) (docket & opinion).
• Administrative state retrenchment: West Virginia v. EPA (2022); Loper Bright (2024); Corner Post (2024); SEC v. Jarkesy (2024).
• Presidential accountability: Trump v. United States (2024).
• Shadow docket growth & SB 8: SCOTUSblog coverage and emergency-docket analyses; Whole Woman's Health v. Jackson materials.
• Pending VRA flashpoint: Louisiana v. Callais coverage and docket.