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Publication Date

3-2025

Document Type

Article

First Page

1

Abstract

In this Article, “anti-liberalism” offers a framework for explaining certain tendencies of the recent decision-making of the Roberts Court. The conservative justices, it shows, are relying on a series of arguments historically advanced by “left,” “critical,” and “humanistic” scholars. Almost every one of the Roberts Court’s most controversial opinions deploys both critiques and rhetorical strategies usually tied to leftist theories of law and the legal system. This is true of the lines of cases that overrule Chevron deference (HollyFrontier v. Renewable Fuels, Sackett v. EPA, and Loper Bright Enterprises v. Raimondo); invalidate the right to abortion (Dobbs v. Jackson Women’s Health Organization); expand First Amendment protections for religion (303 Creative v. Elenis, Kennedy v. Bremerton); and more.

The Article distinguishes three once-leftist modes of reasoning that have become central to the Roberts Court’s jurisprudence. First, a weaponization of qualities like “indeterminacy” and “ambiguity” has justified striking everything from statutory provisions to administrative agency authority to the Court’s own precedents. This maneuver creates double binds for the dissenting justices, in cases like Trump v. New York and West Virginia v. EPA, compelling them to defend conventionally more “textualist” principles like “common sense” and “plain meaning.” It also ushers in wordplay by the conservative justices that manipulates the figurative and associative resonances of ambiguous language. Second, other opinions decry the “fictional” and constructed status of different legal standards (the reasonable observer in Kennedy v. Bremerton), categories (personhood in Dobbs), and doctrines (substantive due process) along lines geared to expose their prejudicial “exclusions.” Third, classic critiques of liberal legalism (including of liberal ideals like rationalism, secularism, and individualism) increasingly drive the Court’s decision-making, while simultaneously warranting appeals to natural or unwritten law and what this Article describes as variants of “political theology.” The Article thus wrestles with the irony that the conservative legal revolution is being enabled by arguments, tactics, and ideas appropriated from a quintessentially leftist playbook.

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