Dan McLaughlin’s exhaustive preview of the Supreme Court’s remaining term in National Review catalogs 22 cases the conservative legal movement expects to win. It is, by its own terms, utterly competent. And it contains not a single word about the community the law was built to defend. The hardware store on the west side of this county closed when the railroad shed its last crew; the law argued in Wolford v. Lopez won’t reopen it. McLaughlin’s piece is a thorough catalogue of questions—executive removal powers, geofence warrants, the reach of the Fourteenth Amendment’s citizenship clause—and a quiet confession of what the movement has traded for the law.
I will grant the best version of the argument that lies beneath the docket. A constitutional order that limits federal power, respects the separate spheres of the states, and realigns the administrative state to accountable leadership is no trivial thing. If the Court restores the president’s removal authority over FTC commissioners, if it sharpens the line against the nationalization of election law that the mail-ballot-deadline case represents, those are not abstract victories. They are structural constraints on the kind of centralization that, in the wrong hands, can crush the small and the local as thoroughly as any private-equity fund. I have never been a fan of a distant commissioner deciding the fate of a town’s markets, and I am not about to pretend that the architecture of the separation of powers is irrelevant to the survival of the place I call home.
But the architecture is a shell, and the conservative legal elite has spent a generation furnishing it while the town it was meant to protect dissolved under its nose. The removal power, for all its constitutional pedigree, will not stop a hedge fund from buying the only nursing home in a county and stripping its equity to send a dividend to a Manhattan partnership. The fate of the Federal Reserve’s independence, argued with such learned passion in Trump v. Cook, will not reverse the consolidation that turned a thousand independent dairy farms into a dozen irrigated potato plantations growing for a single snack-food conglomerate. The Second Amendment, rightly defended in Wolford, will not reopen the hardware store that closed when the railroad shed its last crew and the credit dried up. The conservative legal movement knows exactly how to argue the “subject to the jurisdiction” clause of the Fourteenth Amendment in a birthright citizenship case, but it has forgotten how to argue that the jurisdiction that matters is the one exercised by a town council over its own zoning board. It has traded the tangible devolution of power to the local community for an abstract constitutional restoration whose victories will never reach the loading dock on the west side of this county.
I know the seduction of the abstract because I once lived inside it, trading agricultural futures in a Chicago tower where the corn was a number on a screen and the men who grew it were an expense line I never had to meet. The conservative legal mind has become that tower. It has spent its capital on the rules of the game while the players—the family, the parish, the co-op, the local bank—have been bought out, merged, and stripped for parts by the very forces the movement once claimed to oppose. The docket McLaughlin catalogs is a monument to a conservatism that now exists only in the briefs filed by its best lawyers. Outside those briefs, on the streets of the towns where conservatism was supposed to mean something concrete, the infrastructure of community life has been taken apart by the rentier on the right’s own watch, with the right’s own blessing, while the right’s own legal minds debated the finer points of the Appointments Clause.
The betrayal is not that the Court is deciding important cases. It is that the movement that celebrates those cases has spent thirty years making the very communities the cases were supposed to protect incapable of surviving whatever ruling comes down. A town that has lost its grocery, its credit union, and its family farm to distant capital is a town that cannot exercise the local liberty the conservative legal order claims to prize. The law, in that hollow place, becomes a ceremony performed over a corpse—a solemn defense of a world that was already liquidated by the movement’s own donors.
The way out does not lie in a different docket. It lies in the cooperative, the mutual, the member-owned firm that can survive whatever the Court does to the FTC. The credit union on East Lake Street in Friendship—thirty-one thousand member-owners, one vote each—keeps capital circulating inside the county regardless of whether the Fed governor is removable at will. The organic dairy co-op in La Farge sets its own price and keeps a hundred farm families on the land, no matter how the Supreme Court rules on the Administrative Procedure Act. Those institutions are the real bulwark against the concentrated power the legal right claims to fear, and they are built not in the marble halls of Washington but in the county board rooms and the church basements where the movement once had its roots.
The Senate may confirm another originalist. The Court may restore the removal power and tighten the rules on ballot deadlines. But the church basement in the town that lost its grocery will still be empty, and the men who argued the cases will still file their briefs from offices a thousand miles from the soil they are supposedly conserving. The conservative movement once promised to defend the institutions that fill that basement. Now it only fills a docket.