Conservative Judicial Activism since the 1980s—and the Roberts Court Before and After 2020
By a professor who still believes in daylight, footnotes, and human dignity.
Prologue: On the Word "Activist"
In American law, activist is the powdered sugar we throw on the bench when we want to make someone else's footprints more visible than our own. When liberal justices recognize unenumerated liberties, they are called activists. When conservative justices strike down the regulatory state or rewrite the rules of democratic representation, they are called originalists—as if time itself had retained counsel.
But the honest historian must say: both sides sometimes act boldly. The more relevant question is toward what end. Since the 1980s, the conservative legal movement has acted with strategic purpose—first under the Burger and Rehnquist Courts' "New Federalism," then through the Roberts Court's project to recenter power: from agencies to judges, from elected representatives to donor-driven structures, and from plural democratic settlements to narrower readings of history and text. The stated aspiration has been restraint; the record reveals remaking.
What follows is not an indictment of conservatism as a philosophy. It is an inventory of interventions: the doctrines that have changed how Americans vote, breathe, study, marry, protest, and are governed.
I. The Long Prequel: From "New Federalism" to a Program
In the 1980s–2000s, the Rehnquist Court advanced a muscular vision of states' rights that narrowed Congress's commerce power and sovereign immunity. Canonical waypoints include United States v. Lopez (1995) and United States v. Morrison (2000) limiting federal reach, and Seminole Tribe v. Florida (1996) bolstering state immunity—cases that scholars have fairly labeled a "federalism revolution."
That rebalancing set the stage for a broader conservative program: (1) deregulate politics (money as speech), (2) defang the national government's expert agencies, and (3) move hard questions away from democratic arenas and toward judicially curated history. The Roberts Court would later give each pillar its signature case.
II. The Roberts Court, Act I (2005–2019): Restraint as a Tool of Power
Money and Politics. In Citizens United v. FEC (2010), the Court held that the government may not limit independent expenditures by corporations and unions, a ruling that metastasized dark-money politics and reconfigured campaigns.
Voting Power. In Shelby County v. Holder (2013), the Court disabled the Voting Rights Act's preclearance formula, ending federal review in jurisdictions with deep histories of racial discrimination—on the theory that the formula was no longer "congruent and proportional" to current needs. The decision redrew the practical map of American democracy.
Partisan Gerrymandering. In Rucho v. Common Cause (2019), the Court declared partisan gerrymandering a nonjusticiable political question, washing federal hands of extreme map-drawing even as both parties perfected it with software. As Roberts wrote for the majority, the cure lies with politicians and Congress, not courts—a statement of abstention that functioned as license.
Labor Power. In Janus v. AFSCME (2018), the Court struck down public-sector agency fees, weakening unions' financial backbone under the banner of compelled speech doctrine.
If you prefer a single sentence: by 2020, the Court had protected corporate spending, narrowed federal oversight of voting, declined to police partisan line-drawing, and trimmed organized labor—all in the name of constitutional fidelity. Restraint for some actors produced power for others.
Notably, this period also included counter-currents: Obergefell v. Hodges (2015) recognized same-sex marriage, and Bostock v. Clayton County (2020) held that Title VII protects LGBTQ workers. These were 5–4 and 6–3 rulings, respectively; they do not refute the long arc but show that doctrine is a chorus, not a solo.
III. The Roberts Court, Act II (2020–present): A Project Comes to Fruition
After 2020—following Justice Ginsburg's death and Justice Barrett's confirmation—the pace and breadth of change accelerated.
A. Rights Regime Reset
Abortion. Dobbs v. Jackson Women's Health (2022) overruled Roe and Casey, returning abortion regulation to the states. Whatever one's moral view, as law it was maximal: discarding half a century of precedent and re-ordering health, privacy, and federalism in a single stroke.
Guns. NYSRPA v. Bruen (2022) recast Second Amendment analysis around "history and tradition," striking New York's century-old carry regime and limiting modern public-safety balancing. Lower courts have since struggled to apply the new test.
Religion and Speech. 303 Creative v. Elenis (2023) expanded compelled-speech doctrine, allowing a business to decline certain custom expressive services notwithstanding a public-accommodations law. The holding turned anti-discrimination into a site of carve-outs.
Affirmative Action. Students for Fair Admissions v. Harvard/UNC (2023) ended race-conscious undergraduate admissions nationwide, declaring the programs incompatible with the Equal Protection Clause and Title VI.
B. The Administrative State: From Deference to Judicial Primacy
Climate and "Major Questions." West Virginia v. EPA (2022) restricted EPA's ability to shift generation across the power sector absent clear congressional authorization, formalizing the "major questions" doctrine.
Chevron Overruled. In Loper Bright v. Raimondo (2024), the Court ended four decades of Chevron deference, instructing judges to find the "best" reading of statutes rather than defer to plausible agency interpretations on technical questions. Chief Justice Roberts wrote the majority.
Agency Adjudication Clipped. SEC v. Jarkesy (2024) held that the Seventh Amendment entitles defendants to a jury when the SEC seeks civil penalties for securities fraud, constraining in-house enforcement.
C. Executive Power: The Crown's Shadow
Presidential Immunity. Trump v. United States (2024) recognized absolute criminal immunity for core official acts and at least presumptive immunity for other official acts, with no immunity for private conduct. Dissenters warned the ruling risks a presidency "above the law."
Student Debt & Separation of Powers. Biden v. Nebraska (2023) rejected the administration's mass debt relief under the HEROES Act, signaling a stricter separation-of-powers posture and prefiguring major questions logic beyond environmental law.
If Act I was about tilting the field, Act II has been about moving the goalposts—re-defining how rights are found, how agencies govern, and how presidents are shielded.
IV. Is This "Judicial Activism"? The Mirror Test
The classic conservative critique of the Warren and early Burger Courts was that they invented rights and micromanaged policy. Yet consider the conservative record since the 1980s:
- Rewriting Structural Baselines (federalism limits, sovereign immunity)
- Re-authoring Political Speech Rules (Citizens United)
- Redefining Voting and Representation (Shelby County, Rucho)
- Re-scoping Regulatory Power (West Virginia, Loper Bright, Jarkesy)
- Reconfiguring Individual Rights (Dobbs, Bruen, 303 Creative, SFFA)
That is not judicial minimalism; it is a sustained, programmatic re-ordering of American public life. If you call Roe "activist," you must be consistent and call Dobbs "activist" in the opposite direction. If you call Warren-era incorporation of the Bill of Rights "judicial overreach," what—other than ideology—prevents the same label from attaching to a court that abolishes a 40-year administrative doctrine, disempowers Congress's chosen experts, and grants new immunities to the single most powerful office in the Republic?
Activism is not the presence of change; it is the ambition of it.
V. What Changed After 2020 (And Why It Matters)
Three shifts define the post-2020 Roberts Court:
Method as Gatekeeper. "History and tradition" (e.g., Bruen) turns judges into archivists, elevating curations of 1791/1868 practice over contemporary empirical governance. This privileges eras that excluded women, enslaved people, and most immigrants from lawmaking—an irony at odds with a pluralistic 21st-century nation.
Judicialization of Policy. With Chevron gone, the center of gravity moves from hydrologists and economists to generalist judges. Agencies will still regulate, but with litigation risk as the new policy throttle. Expect longer timelines, narrower rules, and more forum shopping.
Asymmetry of Vulnerability. The combination of Shelby County, Rucho, and SFFA, alongside strengthened speech protections for money and certain religious-speech claims, shifts burdens: marginalized voters face greater hurdles; well-financed speakers face fewer. This is not coincidence; it is a design—whether intended or emergent.
VI. A Personal Note from a "Regulated Optimist"
I teach that constitutional faith is not faith in outcomes but in process: representation, accountability, and the capacity for revision without violence. On that standard, the Roberts Court has sometimes surprised for the good—Moore v. Harper (2023) rejected the most radical version of the "independent state legislature" theory, a quiet guardrail for 2024 and beyond. But the larger pattern has been centrifugal: power drifting away from majoritarian institutions toward courts, donors, and the executive.
Optimism here is practical, not naïve. It lives in state courts applying their constitutions robustly; in Congress drafting clearer statutes; in voters rewarding reforms like independent redistricting and ranked-choice elections; and in a bar that argues with evidence, not vibes.
VII. Looking Sideways: Law, Culture, and the "Unknown Map"
You asked me to keep in view themes we'll cover in later essays. Let me sketch their ligatures to the Court:
The "Unknown" Hispanic/Spanish Map of the U.S. Even as national law narrows remedies for discrimination, the country is becoming ever more hemispheric: 65 million Hispanics (≈19% of the population) and tens of millions of Spanish speakers shape schools, markets, and elections. Yet their historical imprint—Florida, the Gulf, the Southwest—remains under-taught, and thus under-represented in legal imaginations of "tradition." When Bruen tells judges to look backward, whose past counts?
Infrastructure, Federal Capacity, and Judicial Doctrine. The Bipartisan Infrastructure Law (IIJA) announced funding for 66,000+ projects, from tunnels to broadband. At the same time, anti-delegation currents and major questions rulings put agencies on shorter leashes, slowing complex delivery. The result: highly visible bottlenecks (e.g., EV charging rollout) that feed public cynicism and invite further judicial skepticism—a feedback loop.
Foreign Policy Toward Latin America. Courts largely defer abroad, but domestic legal narratives—security, drugs, migration—create permissive politics for policies that would be unthinkable toward European allies. A low-salience unknown territory problem in public opinion helps: what we don't study, we tolerate. The historical record of U.S. actions in Guatemala and Chile is, by now, amply documented; the lessons, less absorbed.
Those threads belong to the culture; the Court tugs on them.
VIII. Ground Truthing: Infrastructure as a Case Study in Constitutional Consequences
You asked for 2–3 states. Let's read the pavement.
1) Texas — The Grid and the Price of "Freedom"
The February 2021 blackout exposed an energy market optimized for cheapness and isolation, not resilience. The FERC/NERC post-mortem urged mandatory winterization and cross-jurisdictional fixes. That is technocracy, not ideology—and exactly the sort of expertise a deference-skeptical judiciary will second-guess if agency rules get bold. The lesson: when constitutional law de-professionalizes governance, utility poles feel it.
2) California — High-Speed Rail and the Friction of Scale
The state's bullet train is both necessary (for climate and mobility) and beleaguered (costs, timelines, federal fights). The 2024 business plan and subsequent federal correspondence document funding gaps and political whiplash. Large systems require steady delegation; courts now require steadier statutes. Without either, megaprojects stutter, and the public concludes government cannot build. That cynicism is constitutional fuel.
3) Louisiana — The Vanishing Coast
Two thousand square miles of land lost since the 1930s; a 2023 master plan to triage what remains. When executive capacity is chilled, flood maps become obituaries. The judiciary's climate posture (from West Virginia to emergency-stay skirmishes) shapes what engineers can attempt before the Gulf claims another parish.
Infrastructure is where separation-of-powers theories meet culverts and coffins. If you want a test for constitutional design, ask whether a country can keep the lights on, move people efficiently, and hold back the sea.
IX. Foreign Policy, Double Standards, and Public Ignorance
A recurring American habit: strict "conditionality" for Latin America (sanctions, certification regimes, counternarcotics linkage) and more forgiving dialogues with European allies. Part of that is alliance structure. Part is the long shadow of the Monroe Doctrine. And part is public salience: Americans know Paris; fewer know Tegucigalpa. Political scientists have shown how policy-specific ignorance shapes preferences; strategists exploit this asymmetry to sell hard-line policies where scrutiny is scarce. The historical record—from CIA operations in Guatemala (1954) and Chile (1973) to later security programs—illustrates a throughline of exceptionalism.
Courts are not the prime movers here, but they do define remedies and review: who gets standing to challenge sanctions, how asylum rules are read, how presidents are immunized. When Trump v. United States expands official-acts immunity, it changes the shadow price of foreign adventurism—another mirror on the bench.
X. A Conservative Counterargument, Fairly Stated
A principled conservative will answer: We are not activists; we are restoring the constitutional order—text before policy, Congress before agency, voters before experts. If legislatures want climate action, loan cancellation, or carry limits, they must speak clearly. If they will not, judges will not save them.
There is virtue in that clarity. But the rejoinder is practical: twentieth-century governance is governance by statute plus expertise, because modern problems (pathogens, grids, emissions) change too quickly for annual omnibus bills to specify everything. And when the Court both disables new democratic correctives (e.g., by exiting partisan gerrymandering) and demands hyper-specific statutes, it builds a two-lock door with one key removed.
XI. What Now? Five Modest, Workable Reforms
Legislate with Clarity: Use express delegations with measurable triggers to survive "major questions" scrutiny. (Congress has done this before; it can again.)
Strengthen State Courts: Many state constitutions protect voting, education, and environment more robustly; invest there. Moore v. Harper preserved that path.
Independent Redistricting & Election Administration: If federal courts won't police partisan maps, citizens must. (Rucho made this the only court-proof route.)
Rebuild Agency Capacity: Post-Loper Bright, agencies must win on statutory craft and record quality. Build litigation teams that write for judges as first audience.
Civic Literacy about the Hemisphere: Teach the Spanish-American map inside U.S. civics so "history and tradition" cannot be cherry-picked from one language. (This is pedagogy as constitutional infrastructure.)
Epilogue: The Mirror and the Meridian
Borges liked to remind us that mirrors and copulation are abominable because they multiply the number of men. I would add: judicial doctrines, too, multiply realities. They refract how we vote, where we build, whom we protect, and what we remember.
The Roberts Court before 2020 tilted the field. After 2020, it began to redraw it. Call that activism or restoration as your priors dictate. My own view—optimistic, regulated by evidence—is that democratic societies can learn. Legislatures can draft better; agencies can argue better; citizens can know more; courts can sometimes surprise us.
Noon is not permanent. But sunlight returns, if we insist on windows.
What's Next
This is the second in a quartet of long-form essays exploring the hidden continuities that shape American public life. Coming next: how Spanish America built U.S. culture and politics (and why we forgot), infrastructure after the Bipartisan Law, and why U.S. policy treats Latin America differently from Europe.
Citations & References
Key cases and sources referenced throughout this analysis, from Lopez and Morrison through Dobbs and Loper Bright, represent the constitutional throughline of conservative judicial doctrine since the 1980s. Full citations available in the legal database of record.