Missouri’s Josh Hawley came to bury originalism, not praise it – and he was wrong. “This represents the end of the conservative legal movement,” he told the Senate two years ago, referring to a ruling by Judge Neil Gorsuch that redefined “sex discrimination” to protect gay and transgender employees. On December 5, four days after the judges heard the arguments in Dobbs v. Jackson Women’s Health Organization, Catholic University of America jurist Joel Alicea issued a more sympathetic warning. “The conservative legal movement stands at its most precarious point since its inception in the early 1970s,” he wrote. If the court refused to annul Roe vs. Wade (1973), argued Mr. Alicea, this would “probably smash the movement”, bringing “to an end one of the most successful intellectual and political projects of the last half-century”.
Instead, it was the term when the Tory court arrived. deer and his successor, Family planning c. Casey (1992), are no longer a good law. Neither Lemon vs. Kurtzman (1971), who set up a confusing three-part test to keep religion out of the public sphere. The court expanded gun rights for the first time in 12 years. And it limited the power of the executive to regulate without the express authorization of Congress.