{"id":135744,"date":"2025-10-24T00:35:30","date_gmt":"2025-10-24T08:35:30","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/10\/24\/rule-of-law-conservatives-awkwardly-embrace-resistance\/"},"modified":"2025-10-24T00:35:30","modified_gmt":"2025-10-24T08:35:30","slug":"rule-of-law-conservatives-awkwardly-embrace-resistance","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/10\/24\/rule-of-law-conservatives-awkwardly-embrace-resistance\/","title":{"rendered":"Rule Of Law Conservatives Awkwardly Embrace #Resistance"},"content":{"rendered":"

The Trump administration literally tore down the White House yesterday<\/a>. After lying that his golden imperial ballroom \u2014 a Versailles-powered-by-Home-Depot monstrosity \u2014 \u201cwon\u2019t interfere with the current building<\/a>,\u201d crews destroyed the whole East Wing \u2014 all during a government shutdown that put essential government services on hold.<\/p>\n

This all-too-on-the-nose metaphor wasn\u2019t lost on the crowd gathered at the annual summit of the Society for the Rule of Law<\/a>. The organization, comprised of mostly conservative and libertarian lawyers conceived during the first Trump administration, convened in a Washington hotel ballroom for a day long lament over the collapse of constitutional order. It didn\u2019t take long for a speaker to link the physical destruction \u2014 and the circumstances around it \u2014 to the topic of the summit. <\/p>\n

A certain gallows humor over the prospect of democratic collapse loomed over the conference. It manifested right at the start. After being wanded and searched by the team of security guards whose presence never quite faded into the background in this cramped space, a staffer handing out badges asked if I was a Society member.<\/p>\n

\u201cPress,\u201d I declared. <\/p>\n

Another swooped in. \u201cPress? I\u2019ll take care of them.\u201d <\/p>\n

The table laughed and repeated \u201ctake care of them\u201d in mock ominous tones. <\/p>\n

\u201cHey, I thought this was the other<\/em> kind of conference,\u201d I replied. Some of the biggest laugh lines of the day came when people would make suggestions like the separation of powers holding or asking if voter suppression efforts are intentionally devious. Early in the day, former Maricopa County Recorder Stephen Richer let it slip that the Society\u2019s Executive Director, Gregg Nunziata, asked moderators to try to coax something positive from each panel, which felt more like a dare than advice. Everyone\u2019s struggle to do so became the running joke of the day. George Conway and Norm Eisen kept the room in stitches as they playfully bantered about the \u201cstrange bedfellows\u201d that constitutional collapse creates. Paradoxically, all the levity conveyed a better grasp of the grim reality than reading stern letters penned by Democratic leadership.<\/p>\n

As the conference explored topics ranging from the unitary executive theory to election security, an unspoken theme, which only a few of the speakers seemed to grasp, was whether the work of this is an opposition organization that can bring the old conservative legal movement back from the brink, or if, like the physical East Wing, the charge of the moment is realizing that it\u2019s gone and figuring out what gets built in its stead. It\u2019s a question rooted in the cognitive dissonance many of these folks must feel. Because amidst the sea of blazers and bowties, with the right set of eyes, you could still pick out a few guys dressed as overgrown hot dogs assuring the audience \u201cwe\u2019re all looking for the guy who did this!<\/a>\u201c<\/p>\n

The event took place in the same hotel where I lived for three months as a junior Biglaw associate. Back then, George W. Bush had just imposed the PATRIOT Act, built an offshore prison the light of the law could theoretically never touch, and prepared to take over Iraq based on vague claims about WMDs that never existed outside the administration\u2019s own fever dreams. So it came as a bit of a jarring juxtaposition as a parade of Bush alumni and Federalist Society exiles who would\u2019ve nodded approvingly at torture memos twenty years ago all took turns lamenting the collapse of constitutional order.<\/p>\n

But to quote the Washingtonian fantasy that inadvertently poisoned a generation, we will \u201cforget the fact that you\u2019re coming a little late to the party\u00a0and embrace the fact that you showed up at all.\u201d <\/p>\n

Though there were still a few who couldn\u2019t quite let go and spent the time crafting reasons why Trump\u2019s abuses are really<\/em> the fault of Democrats or dismissing Trump\u2019s power grab as the natural and logical consequence of their decades-long push for a limitlessly powerful unitary executive. These coping mechanisms often paired with a charmingly tragic naivet\u00e9, as though this isn\u2019t the natural and logical conclusion of the conservative legal movement\u2019s Nixonian obsession with fluffing the legal foundation for unchecked executive power. Federalist Society minds spent their careers arguing the president should have king-like powers over the executive branch and are now shocked \u2014 SHOCKED \u2014 that someone might use those to be king. Like a Scooby-Doo villain voice swearing that it would\u2019ve worked too, if it weren\u2019t for that pesky Trump!<\/p>\n

\u201cThis organization needs to be nonpartisan and focused on the Constitution and the rule of law, and not just be anti-MAGA, anti-Trump,\u201d Jonathan Rauch of the Brookings Institution explained. \u201cThat said, it is equally important if you\u2019re going to survive in the wilderness, you must not confuse tigers and pussycats.\u201d When terms like unprecedented get thrown around, it\u2019s unproductive to spend time and effort attacking the slippery slope like an American Ninja Warrior to find some way to hang this on something a backbencher Democrat said 20 years ago or trying to square-peg-round-hole Biden\u2019s student loan forgiveness plan as the precursor to Trump zero-budgeting the Department of Education. <\/p>\n

Judge Michael Luttig had no trouble distinguishing the tigers from the pussycats. In what can best be described as measured fury, Judge Luttig called out the administration\u2019s \u201cexplicit, express defiance\u201d of the judiciary and the Supreme Court\u2019s abject failure to do anything about it:<\/p>\n

\n

Every day of the week, for the past 10 months, judges like Judge Gertner and Judge Grimm are facing the President of the United States, and Attorney General of the United States\u2026 lying to their face. Lying to the judges. The prosecutors are lying to the federal courts. Meanwhile, outside the courtroom, the President of the United States, and the Attorney General of the United States, are trashing the federal courts. Trashing the individual judges. Calling them every name in the book. Never in American history has this ever happened. And these people who are trying to do their job under those circumstances, are looking up at the Supreme Court of the United States, who they know, to a virtual certainty<\/strong>, would reverse them in a second if they held Donald Trump in contempt.<\/p>\n<\/blockquote>\n

This is Supreme Court is the apotheosis of the conservative legal movement. For all the talk of liberty and small government, when the chips are down, all it seems to mean to the justices is the liberty<\/em> to pollute drinking water and a small government<\/em> that just cuts out the part fighting consumer fraud. <\/p>\n

Against this backdrop, we return to the question: what is the role of the principled conservative at this moment? Richard Bernstein, a former Biglaw partner and Scalia clerk, discussing what happens if Mike Johnson\u2019s current refusal to seat a duly elected member metastasizes into a full-scale rejection after the midterms, \u201cif they allow people duly elected, certified in their states, not to become members of Congress, then the game\u2019s over. The game\u2019s over. Then, then we\u2019re not at the opposition. We\u2019re the resistance. And I\u2019m too chicken to be the resistance.\u201d The omnipresent, stone-faced security certainly gave more of a resistance energy. <\/p>\n

Joking aside, is this an opposition or a resistance? Former Congresswoman Barbara Comstock invoked the concept of \u201ccivil society,\u201d which played such a profound role in post-Soviet transitions. Norm Eisen didn\u2019t touch on this subject, but it struck me that he had served as the ambassador to the Czech Republic, a nation held up as an example<\/a> of how robust, underground civil society structures can facilitate post-authoritarian recovery.<\/p>\n

Is that the future of this group? Building a \u201cconservative\u201d legal movement from the rubble of the last one? If so, it\u2019s going to require even more folks to take a harsh look at what really brought Trump to this point. Whatever the answer is, the Society seems committed to figuring it out. <\/p>\n

Hopefully before next year\u2019s conference when we\u2019ll be probably be meeting in an El Salvadoran labor camp. <\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post Rule Of Law Conservatives Awkwardly Embrace #Resistance<\/a> appeared first on Above the Law<\/a>.<\/p>\n

The Trump administration literally tore down the White House yesterday<\/a>. After lying that his golden imperial ballroom \u2014 a Versailles-powered-by-Home-Depot monstrosity \u2014 \u201cwon\u2019t interfere with the current building<\/a>,\u201d crews destroyed the whole East Wing \u2014 all during a government shutdown that put essential government services on hold.<\/p>\n

This all-too-on-the-nose metaphor wasn\u2019t lost on the crowd gathered at the annual summit of the Society for the Rule of Law<\/a>. The organization, comprised of mostly conservative and libertarian lawyers conceived during the first Trump administration, convened in a Washington hotel ballroom for a day long lament over the collapse of constitutional order. It didn\u2019t take long for a speaker to link the physical destruction \u2014 and the circumstances around it \u2014 to the topic of the summit. <\/p>\n

A certain gallows humor over the prospect of democratic collapse loomed over the conference. It manifested right at the start. After being wanded and searched by the team of security guards whose presence never quite faded into the background in this cramped space, a staffer handing out badges asked if I was a Society member.<\/p>\n

\u201cPress,\u201d I declared. <\/p>\n

Another swooped in. \u201cPress? I\u2019ll take care of them.\u201d <\/p>\n

The table laughed and repeated \u201ctake care of them\u201d in mock ominous tones. <\/p>\n

\u201cHey, I thought this was the other<\/em> kind of conference,\u201d I replied. Some of the biggest laugh lines of the day came when people would make suggestions like the separation of powers holding or asking if voter suppression efforts are intentionally devious. Early in the day, former Maricopa County Recorder Stephen Richer let it slip that the Society\u2019s Executive Director, Gregg Nunziata, asked moderators to try to coax something positive from each panel, which felt more like a dare than advice. Everyone\u2019s struggle to do so became the running joke of the day. George Conway and Norm Eisen kept the room in stitches as they playfully bantered about the \u201cstrange bedfellows\u201d that constitutional collapse creates. Paradoxically, all the levity conveyed a better grasp of the grim reality than reading stern letters penned by Democratic leadership.<\/p>\n

As the conference explored topics ranging from the unitary executive theory to election security, an unspoken theme, which only a few of the speakers seemed to grasp, was whether the work of this is an opposition organization that can bring the old conservative legal movement back from the brink, or if, like the physical East Wing, the charge of the moment is realizing that it\u2019s gone and figuring out what gets built in its stead. It\u2019s a question rooted in the cognitive dissonance many of these folks must feel. Because amidst the sea of blazers and bowties, with the right set of eyes, you could still pick out a few guys dressed as overgrown hot dogs assuring the audience \u201cwe\u2019re all looking for the guy who did this!<\/a>\u201c<\/p>\n

The event took place in the same hotel where I lived for three months as a junior Biglaw associate. Back then, George W. Bush had just imposed the PATRIOT Act, built an offshore prison the light of the law could theoretically never touch, and prepared to take over Iraq based on vague claims about WMDs that never existed outside the administration\u2019s own fever dreams. So it came as a bit of a jarring juxtaposition as a parade of Bush alumni and Federalist Society exiles who would\u2019ve nodded approvingly at torture memos twenty years ago all took turns lamenting the collapse of constitutional order.<\/p>\n

But to quote the Washingtonian fantasy that inadvertently poisoned a generation, we will \u201cforget the fact that you\u2019re coming a little late to the party\u00a0and embrace the fact that you showed up at all.\u201d <\/p>\n

Though there were still a few who couldn\u2019t quite let go and spent the time crafting reasons why Trump\u2019s abuses are really<\/em> the fault of Democrats or dismissing Trump\u2019s power grab as the natural and logical consequence of their decades-long push for a limitlessly powerful unitary executive. These coping mechanisms often paired with a charmingly tragic naivet\u00e9, as though this isn\u2019t the natural and logical conclusion of the conservative legal movement\u2019s Nixonian obsession with fluffing the legal foundation for unchecked executive power. Federalist Society minds spent their careers arguing the president should have king-like powers over the executive branch and are now shocked \u2014 SHOCKED \u2014 that someone might use those to be king. Like a Scooby-Doo villain voice swearing that it would\u2019ve worked too, if it weren\u2019t for that pesky Trump!<\/p>\n

\u201cThis organization needs to be nonpartisan and focused on the Constitution and the rule of law, and not just be anti-MAGA, anti-Trump,\u201d Jonathan Rauch of the Brookings Institution explained. \u201cThat said, it is equally important if you\u2019re going to survive in the wilderness, you must not confuse tigers and pussycats.\u201d When terms like unprecedented get thrown around, it\u2019s unproductive to spend time and effort attacking the slippery slope like an American Ninja Warrior to find some way to hang this on something a backbencher Democrat said 20 years ago or trying to square-peg-round-hole Biden\u2019s student loan forgiveness plan as the precursor to Trump zero-budgeting the Department of Education. <\/p>\n

Judge Michael Luttig had no trouble distinguishing the tigers from the pussycats. In what can best be described as measured fury, Judge Luttig called out the administration\u2019s \u201cexplicit, express defiance\u201d of the judiciary and the Supreme Court\u2019s abject failure to do anything about it:<\/p>\n

\n

Every day of the week, for the past 10 months, judges like Judge Gertner and Judge Grimm are facing the President of the United States, and Attorney General of the United States\u2026 lying to their face. Lying to the judges. The prosecutors are lying to the federal courts. Meanwhile, outside the courtroom, the President of the United States, and the Attorney General of the United States, are trashing the federal courts. Trashing the individual judges. Calling them every name in the book. Never in American history has this ever happened. And these people who are trying to do their job under those circumstances, are looking up at the Supreme Court of the United States, who they know, to a virtual certainty<\/strong>, would reverse them in a second if they held Donald Trump in contempt.<\/p>\n<\/blockquote>\n

This is Supreme Court is the apotheosis of the conservative legal movement. For all the talk of liberty and small government, when the chips are down, all it seems to mean to the justices is the liberty<\/em> to pollute drinking water and a small government<\/em> that just cuts out the part fighting consumer fraud. <\/p>\n

Against this backdrop, we return to the question: what is the role of the principled conservative at this moment? Richard Bernstein, a former Biglaw partner and Scalia clerk, discussing what happens if Mike Johnson\u2019s current refusal to seat a duly elected member metastasizes into a full-scale rejection after the midterms, \u201cif they allow people duly elected, certified in their states, not to become members of Congress, then the game\u2019s over. The game\u2019s over. Then, then we\u2019re not at the opposition. We\u2019re the resistance. And I\u2019m too chicken to be the resistance.\u201d The omnipresent, stone-faced security certainly gave more of a resistance energy. <\/p>\n

Joking aside, is this an opposition or a resistance? Former Congresswoman Barbara Comstock invoked the concept of \u201ccivil society,\u201d which played such a profound role in post-Soviet transitions. Norm Eisen didn\u2019t touch on this subject, but it struck me that he had served as the ambassador to the Czech Republic, a nation held up as an example<\/a> of how robust, underground civil society structures can facilitate post-authoritarian recovery.<\/p>\n

Is that the future of this group? Building a \u201cconservative\u201d legal movement from the rubble of the last one? If so, it\u2019s going to require even more folks to take a harsh look at what really brought Trump to this point. Whatever the answer is, the Society seems committed to figuring it out. <\/p>\n

Hopefully before next year\u2019s conference when we\u2019ll be probably be meeting in an El Salvadoran labor camp. <\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post Rule Of Law Conservatives Awkwardly Embrace #Resistance<\/a> appeared first on Above the Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Trump administration literally tore down the White House yesterday. After lying that his golden imperial ballroom \u2014 a Versailles-powered-by-Home-Depot monstrosity \u2014 \u201cwon\u2019t interfere with the current building,\u201d crews destroyed the whole East Wing \u2014 all during a government shutdown that put essential government services on hold. This all-too-on-the-nose metaphor wasn\u2019t lost on the crowd […]<\/p>\n","protected":false},"author":3,"featured_media":135718,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-135744","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/10\/Headshot-300x200-BqzIFr.jpg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/135744","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=135744"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/135744\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/135718"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=135744"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=135744"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=135744"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}