Two law professors, Robert L. Tsai and Mary Zeigler, distinguish between partisan judges (who identify with a political party) and movement judges (who identify with a social cause). In the case of Republican-appointed nominees from the latter group, they have largely come out of one of two distinct movements: the anti-abortion movement and the conservative legal movement.
Although I agree that “Sometimes, the public, incorrectly, views movement judges as interchangeable with partisan judges,” the distinctions the authors make are hardly surprising for observers of the political battles waged over the federal courts since the 1980s (or earlier). Nonetheless, their analysis clarifies a (small-d) democratic predicament.
Neither the anti-abortion movement (led by white evangelical Christians), nor the conservative legal movement (championed by Leonard Leo and his deep-pocketed donors, often of dark-money), are committed first and foremost to the Republican Party. The party is a vehicle. The SCOTUS majority in the Dobbs decision was determined, by hook or by crook, to overturn Roe – never mind the consequences for the Republican Party. At this stage, the decision appears to be an electoral loser for Republicans (though not in their primary elections, where movement activists wield exorbitant influence).
Like last year’s New York State Rifle & Pistol Association v. Bruen ruling, the court majority brushed aside precedent, judicial restraint, concern for the court’s legitimacy, and scrupulous adherence to any purported principles (‘originalism,’ ‘strict constructionism,’ ‘textualism’) promoted in recent decades by the Federalist Society. This imperious majority cherry-picked history in both rulings, as it has in other decisions, when it hasn’t ignored history altogether because it conflicted with the justices’ results-oriented reasoning.
But whatever else these decisions were, they constituted victories for the Republican Party, which is in the thrall of activists of both social movements. Not all victories are popular; not all are winners at the ballot box. The country’s movement judges are a product of the Republican Party’s relentless campaign to capture the courts.
This is crucial to the Republican Party’s strategy because their agenda is broadly unpopular, especially with an increasingly younger, more diverse electorate. What Republicans can’t win at the ballot box, they can impose through an unrestrained judicial branch, with the power to neuter and dominate the other branches of government – the political branches, where Americans are empowered to cast ballots.
As Tsai and Ziegler put it:
“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.”