Ilya Shapiro speaking at the 2016 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. Photo by Gage Skidmore, licensed under CC BY-SA 2.0.
This article was originally published on Shapiro’s Gavel on Substack and is republished here with permission.
I was recently invited to participate in a symposium on the future of the conservative legal movement hosted by The American Mind, a publication of the Claremont Institute (where I was a Lincoln Fellow back in 2015). It began with a provocative call by Jesse Merriam for the movement to rethink its aims to meet the challenges of today. Here’s my contribution, which was posted on the site on Friday and has been headlining it all weekend. —IS
If you only read social media, you’d think the conservative legal movement is in dire straits. Politicians lash out at judges and at the Federalist Society. Some on the Right grumble that originalism has yielded little more than panel discussions and law‑review symposia. In this very forum, friends suggest that our moment demands a new “constitutional morality,” a more ambitious jurisprudence that will somehow arrest civilizational decline.
Count me unconvinced. The short answer to “What comes after originalism?” is more originalism, plus better policy. The movement’s future lies in consolidating the gains of the last decade, deepening our commitment to the Constitution’s text and original public meaning, and building political and cultural institutions that can address the “crises of belonging, fertility, and meaning.” Courts have an important—but limited—role in that project. Asking judges to save the country is not just unrealistic; it’s a category error.
Jesse Merriam opened this symposium by noting the extraordinary run the conservative legal movement has had, pointing out that Roe, Lemon, Chevron, Bakke, and Grutter are either gone or gutted. I would add to that triumphal list rulings that have restored gun rights, strengthened religious freedom and property rights, and blocked President Biden’s vaccine mandates and student-loan forgiveness. As John Ehrett puts it, we’re the “dog that caught the car”: after decades of building a network of judges, scholars, and litigators, the movement finally has a solid originalist-textualist majority on the Supreme Court and a lower bench full of rising stars in the same vein.
That success, however, has prompted a wave of second thoughts. Merriam and his sympathetic critics worry that a movement defined by “how precedents are interpreted and distinguished” has become technocratic and backward-looking. They urge us to enliven our constitutional framework in ways better suited to our demographic and spiritual crises. They want judges to recover a richer account of the human person, to treat corporate power with more skepticism, and to see legal questions through a thicker moral “anthropology.”
These concerns aren’t frivolous. I share much of the diagnosis: social fragmentation, collapsing family formation, a debased culture, and an oligarchic economy are all real problems. Mark Pulliam is surely right that we have “never had a better Supreme Court—and a worse legal culture.” But it doesn’t follow that the cure is to turn judges into would-be moral philosophers, tasked with articulating and enforcing a comprehensive theory of the good.
Originalism Is a Floor, Not a Ceiling
In his entry, Ilan Wurman helpfully distinguishes three overlapping conservative projects: the rule of law (where originalism lives), the role of law (how law should serve conservative ends), and constitutionalism in a broader, unwritten sense. All three matter. But we do ourselves no favors by blurring them together, especially at the level of judicial duty.
Originalism is how we give legal effect to the Constitution that the American people ratified. It’s not the whole of political conservatism, and it’s certainly no substitute for a robust legislative agenda. But if you care about conserving the Founding, you have to care about the interpretive method that makes “their Constitution our Constitution.”
And contrary to the “dog that caught the car” anxiety, originalism’s judicial project is nowhere near complete. The overruling of Roe v. Wade, the restoration of the Second Amendment, the rejection of racial preferences, the skeptical turn in administrative law—all of these are foundational, not terminal, victories. They clear out some of the worst doctrinal underbrush, but the forest is still dense: whole swaths of administrative, civil rights, property, and remedies law still bear the marks of 20th-century judicial policymaking.
At the level of doctrine the conservative legal movement is maybe in the fourth inning, not the bottom of the ninth. It would be bizarre to declare originalism exhausted just as it has finally secured a working majority willing to treat the Constitution as law.
In his response to Merriam, John Yoo also seeks greater precision on what originalism can and cannot do. He puts the point bluntly: “[C]reating a constitutional morality is beyond the judicial power.” Originalism is a method of interpretation, not a comprehensive moral philosophy. It keeps judges within the boundaries of their office by asking them to enforce the rights and structures established in the constitutional text as it was understood when it was ratified.
That modesty is a virtue, not a defect. Conservatives learned the hard way what happens when judges mistake their own moral and political preferences for constitutional commands. Repeating that experiment from the Right—inviting judges to enforce a “new constitutional morality” more congenial to traditional religion and family life—would not repair the damage. It would instead entrench the idea that the Supreme Court is a sort of super-legislature empowered to read the nation’s moral code into the Constitution.
That doesn’t mean that our law is (or should be) morally neutral or that judges are automatons. But it does mean that judges’ legitimate moral work is channeled through the oath they take: to apply “this Constitution” and “these laws,” not their preferred vision of the good society. The moment judges start treating their own conception of virtue as constitutional law is when they cease to be judges in the American sense and become Platonic Guardians in robes.
The Myth of the FedSoc Crack-Up
Part of the current angst stems from a misreading of intra-right politics. I’ve pushed back elsewhere against the breathless narrative of a MAGA/Federalist Society divorce, in which President Trump supposedly picked judges from a FedSoc list, those judges “betrayed” him, and populists now want to abandon the old guard.
That account has things largely backwards. The New Right’s loudest complaints about the judiciary have usually been triggered by lower-court resistance to aggressive executive action—a resistance driven overwhelmingly by Democratic-appointed judges. When those sorts of cases have reached the Supreme Court, the administration has done quite well. And the justices everyone loves to bash—Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett—have been indispensable to nearly every major conservative victory of the last decade.
It’s simply not serious to look at that record and conclude that the problem with the conservative legal movement is that its judges are too fastidious about law and not sufficiently attuned to “what time it is.” Absent the Federalist Society’s multi-decade investment in cultivating serious textualist-originalist lawyers and judges, the Trump Administration’s judicial legacy would look much more like the misfires of the Nixon or even Eisenhower years than our current moment.
FedSoc itself remains what it has always been: a debating and networking organization housed under a big tent. In addition to now-standard originalists, its membership includes judicial-restraint skeptics, common-good constitutionalists, libertarians, and institutionalists. That’s a feature, not a bug. Disagreements about trade policy or the war in Ukraine are not reasons to blow up the only institution that has consistently produced judges willing to say “no” to the administrative state and “yes” to the Constitution’s original meaning
The Work Ahead
Here is where I part ways, gently, with some of my friends in this symposium. They are right that a merely negative legal conservatism that aims only to overturn bad precedents is inadequate to our moment. And they are right that a healthy conservatism needs a positive vision of human flourishing, family formation, and civic friendship.
But the institutional location of that project matters. The conservative legal movement should encourage scholars, legislators, and executive‑branch officials to grapple with anthropology, economics, technology, and culture. It should reward career paths that serve the public rather than maximizing partner draws at white-shoe firms. It should invest in legal education, public‑interest litigation, and state-level governance that reflect a serious account of the common good.
None of that requires asking judges to change how they read statutes and the Constitution. On the contrary, many of the concrete reforms my friends desire—more aggressive use of antitrust laws, tighter regulation of social media platforms, greater protection for families and religious communities—depend on judges taking the Constitution’s text and history more seriously, not less. If Congress wants to rein in corporate power or restructure Section 230 immunity, the best way to ensure that those reforms stick is to have courts that resist the temptation to water down clear statutory commands in the name of efficiency or “the common good.”
Carson Holloway makes an important point on this score. The rule of law is not the same thing as rule by judges, “even by conservative judges seeking defensible outcomes.” A constitutionalism that respects the people’s right to self-government must accept that some policy questions—immigration levels, welfare design, the structure of the tax code—are left largely to politics. The fact that the Constitution permits both foolish and wise policies is a feature of republican government, not a gap to be filled by creative judging.
So what, concretely, should the conservative legal movement do in the coming years?
First, it should keep doing what has worked. The movement should continue to identify, train, and elevate judges who are serious about the Constitution’s text, history, and structure; who understand the judiciary as “the least dangerous branch,” to borrow Hamilton’s phrase; and who have the courage to apply the law as written, even when it cuts against their own druthers.
Second, the movement must press originalism further into areas where it has only begun to operate. That means rethinking key doctrines in administrative law, civil rights, and remedies, and taking seriously the original public meaning of provisions like the Privileges or Immunities Clause.
Third, it should broaden the ecosystem around the courts. If you worry as I do about corporate capture and anemic family formation, your focus should be on building legislative agendas, executive‑branch offices, and civil-society institutions that can pursue those concerns within the space originalism protects. That’s where Merriam’s call for a richer “constitutional morality” has real bite: in shaping political platforms, administrative priorities, and cultural projects—not in asking judges to resolve metaphysical questions from the bench.
Finally, the Right should keep our fights in perspective. The enemies of constitutional government are not the Federalist Society, originalism, or the judges who have delivered the most conservative Supreme Court in living memory. They are instead the forces—inside and outside government—that would subordinate law to the needs of a permanent administrative class, redefine fundamental freedoms as dispensable privileges, and treat constitutional constraints as outdated obstacles to be circumvented.
The state of the conservative legal movement is, in truth, remarkably strong. We have a Supreme Court that is finally tacking in a constitutionally faithful direction, a generation of lower-court judges writing opinions grounded in the Constitution’s text and history, and a pipeline of lawyers and scholars who take our founding documents seriously as law. This isn’t a moment for existential despair or theoretical reinvention. It’s a moment for gratitude, patience, and continued work—on the bench, in the political branches, and in the culture that ultimately sustains our law.
About Ilya Shapiro
Ilya Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute and a contributing editor of City Journal. Previously he was executive director and senior lecturer at the Georgetown Center for the Constitution, and before that a vice president of the Cato Institute. Click here to learn more about Ilya Shapiro.
