Social conservatives feel betrayed by the Supreme Court — and the GOP that appointed it

What is the purpose of the Republican Party?

That’s a question some social conservatives have been asking following the Supreme Court’s ruling on June 15 in Bostock v. Clayton County, a major Supreme Court decision holding that federal law prohibits employment discrimination against LGBTQ workers — a decision written by Trump-appointed Justice Neil Gorsuch.

Monday’s decision in June Medical Services LLC v. Russo, which found that a law requiring abortion providers to obtain hospital admitting privileges was unconstitutional, has only intensified that debate.

Both cases gave the Supreme Court the opportunity to prove to social conservatives that their faith in the Court — or, more accurately, in President Trump’s judicial nominations — was justified. Both cases saw those hopes dashed.

The promise the Republican Party makes to rank-and-file social conservatives and leaders of major conservative organizations — one Trump made in 2016, and again in 2020 — is transactional: If you vote for Republican presidents, and elect Republicans to Congress, they will put in place conservative judges who adhere to an “originalist” view of the Constitution and will deliver conservative rulings on some of the most important aspects of American life.

In 2016, Trump promised to put judges on the Supreme Court who would overturn the 1973 landmark abortion decision Roe v. Wade, and said he would choose conservative judges chosen from a list compiled in part by the Heritage Foundation.

That election-year announcement was made in response to then-presidential candidate Sen. Ted Cruz, who said in February 2016 that Trump would put his sister, Maryanne Trump Barry, on the Court, calling her a “hardcore pro-abortion liberal judge.” The message was clear: Putting conservative jurists on the Supreme Court was a top-level political priority.

This bargain helped put Trump in office in 2016: One poll from the Washington Post found 26 percent of Trump voters said the Supreme Court was the basis of their decision.

To be clear, the Trump Supreme Court has delivered victories to socially conservative Republicans — for example, a 2018 decision maintaining that crisis pregnancy centers do not need to provide information about abortion, and a decision Tuesday finding that religious schools cannot be excluded from a state program offering scholarships to private schools.

But this year’s Supreme Court term is shaking the terms of that bargain. One conservative writer told me in response, “The only way to make sense of the Supreme Court’s abortion jurisprudence is to assume it is guided by one principle: ‘Pro-lifers must lose.’”

Among some prominent social conservatives, discontent is starting to boil over. As a conservative writer and editor told me, some social conservatives are asking, as one writer told me, “So what is the GOP actually good for, other than boring tax cuts?”

Social conservatives aren’t likely to begin voting for Democrats. But the discontent indicates a shift within the conservative movement.

The Republican Party hasn’t been immune to the societal shift on LGBTQ rights (although opinions on abortion tend to be more stable). As the party has changed, many social conservatives feel increasingly isolated on cultural and social issues — even from other conservatives. Now even judges handpicked by the conservative Federalist Society, appointed by Republican presidents who won elections on the promise of conservative jurists, have disappointed them.

Trump is again running for the White House in part on the issue of getting conservative jurists on the Supreme Court — he has repeatedly spoken about his hopes for a vacancy.

But some social conservatives are wondering: What’s the point?

“We have been the Republican Party’s useful idiots”

A number of prominent social conservatives, from the executive director of a conservative political action committee to independent writers and thinkers, have complained that the GOP makes social conservatives feel, as one writer told me, “isolated and estranged in our country.”

Social conservatism, as a part of the conservative movement, embraces a specific interpretation of “traditional values” in social issues — from abortion to LGBTQ issues to matters of religious liberty — that they feel need preservation in the face of societal change.

They see their beliefs as a necessary bulwark against the evils of modern society. Josh Hammer, an opinion editor at Newsweek, told me that social conservatism emphasizes the “religious and moral traditions that alone can anchor societies in truth and forestall the seductive allure of the day’s fashionable vagaries.”

Michael Brendan Dougherty, a writer for National Review, also defined social conservatism partly in religious terms: “Social conservatism is the political defense of institutions we deem necessary for the moral and spiritual formation of individuals, institutions that facilitate civil society and good government. Fallen humanity needs these institutions as aids to live together peacefully, tolerably, and well.”

Leaders of the Republican Party recognized decades ago that white social conservatives could make reliable GOP voters, making them integral not just to the Republican Party but to movement conservatism — the effort to put conservative ideas into political action.

As Rush Limbaugh said in February 2008, “The three stools or the three legs of the [Republican] stool are national security/foreign policy, the social conservatives, and the fiscal conservatives.”

Trump was not, and is not, a social conservative, and many of his 2016 attempts to speak the language of social conservatism — for example, saying during a March 2016 town hall that women who have abortions should be punished in some form — fell flat with his desired audience. But he recognized that he could gain their support by putting the Supreme Court at the center of his campaign.

The promise made to social conservatives by Trump and the Republican Party was clear: Vote for us and we’ll use our power to put in place conservative judges who will issue conservative decisions on the issues that matter most to you.

As Michael Wear wrote in the Washington Post earlier this month, “In 2016, Trump offered little in the way of concrete policy commitments, but he did promise social conservatives rock-solid judges and the protection of religious freedom, which would surely be eroded, he claimed, if Hillary Clinton became president.”

Trump has largely fulfilled his promise, appointing conservative jurists to federal courts at every level, as my colleague Ian Millhiser has detailed. And it’s worth noting that the choice of Gorsuch for the Supreme Court was widely feted by social conservatives in 2017.

In a piece for the Federalist that January, Andrew Walker, an associate professor of Christian ethics and apologetics at the Southern Baptist Theological Seminary, wrote that social conservatives should celebrate Gorsuch’s nomination given his “textualist and originalist interpretations of the Constitution” and support from prominent conservative legal thinkers like professor Robert George.

But in Bostock, that promise was seemingly broken. A conservative judge wielded a conservative view of the Constitution to rule that discrimination based on sexual orientation or gender identity was illegal discrimination based on sex.

Walker sounded significantly less enthusiastic about Gorsuch in the wake of the Bostock decision: “The argument that social conservatives like myself made in 2017 was significantly weakened after the Bostock ruling,” he said. “It does not negate the entire argument about Justice Gorsuch’s conservative credentials. Still, it certainly blunts the forcefulness of the argument, and the overall enthusiasm social conservatives once had for Justice Gorsuch.”

Missouri Sen. Josh Hawley, who argues that conservatives should wield the power of the government to uphold conservative norms and ideas, echoed the same message: “This decision, and the majority who wrote it, represents the end of something,” he said in a floor speech on June 16. “It represents the end of the conservative legal movement, or the conservative legal project, as we know it. After Bostock, that effort, as it has existed up to now, is over.”

Hawley’s ire about the decision wasn’t limited to the ruling, but pointed to the unspoken agreement social conservative voters had with the Republican Party: “The bargain is that you go along with the party establishment, you support their policies and priorities — or at least keep your mouth shut about it — and, in return, the establishment will put some judges on the bench who supposedly will protect your constitutional rights to freedom of worship, to freedom of exercise,” he said. “That’s what we’ve been told for years now.”

He added, “And if those are the things that we’ve been fighting for — it’s what I thought we had been fighting for, those of us who call ourselves legal conservatives — if — if we’ve been fighting for originalism and textualism, and this is the result of that, then I have to say it turns out we haven’t been fighting for very much. Or maybe we’ve been fighting for quite a lot, but it’s been exactly the opposite of what we thought we were fighting for.”

Other prominent social conservatives agreed. Rod Dreher, a writer at the American Conservative, told me the ruling in Bostock “really does lay bare how useless the bargain has been.”

“The GOP gives social conservatives little or nothing legislatively, and hasn’t for a very long time,” he said. “True, they have blocked some bad things over the years. That’s not nothing. But I think we’ve always known that judges are the real deal here.”

“Every institution — the media, academia, corporations, and others — are against us on gay and transgender rights, and GOP lawmakers are gutless. The only hope we had was that federal judges would protect the status quo. Now that’s gone.”

Social conservatives have been very successful at the state level, but many of those successes — abortion restrictions, for example — have been struck down by federal courts, like the case at the center of June Medical. And more worrying for social conservatives: Some of the most important decisions on LGBTQ rights — Lawrence (which ruled that laws barring private homosexual activity were unconstitutional), Windsor (which invalidated the Defense of Marriage Act), Obergefell (which found that the right to marry was guaranteed by the Constitution), and now Bostock — were written by Republican Supreme Court appointees.

“Social conservatives thought that having seen Anthony Kennedy — the author of Lawrence, Windsor, and Obergefell — off, things might finally change,” Dreher said. “Now we know we were fools.

“The month of June ought to have made the scales fall from the eyes of religious conservatives. We have been the Republican Party’s useful idiots.”

Other prominent commentators agreed: “Social conservatives have been treated like a client for whom the patron doesn’t actually have to deliver any goodies,” New York Post op-ed editor Sohrab Ahmari told me. “That’s not how that relationship is supposed to work.”

Social conservatives see Republicans winning on economic issues

At the top echelons of the party, Republicans have been far more effective at the economic side of their coalition’s agenda than the social conservative side.

“The ‘effective’ options for social conservatives are limited by the terms of their potential partners and public opinion,” Peter Spiliakos, a writer for the Christian magazine First Things, told me. “Those aren’t the only constraints, but there is no basis for remaking a majority Republican coalition based primarily on unpopular social conservative asks.”

The result has been that Republican presidential candidates make promises to get social conservatives to the voting booths, such as the Bush-era proposed constitutional amendment to ban same-sex marriage, that later do not materialize.

Dreher told me it was in part due to that experience back in 2004 that caused him to change his voter registration from Republican to independent. “Team Bush got out the vote the year before in large part by stoking turnout from social conservatives afraid of court-imposed gay marriage,” he said. “And then when Bush won his second term, he had a chance to repay voters by backing the Federal Marriage Amendment, which would have constitutionalized traditional marriage.

“So what happened? Bush came out and gave a tepid, pro forma endorsement of the amendment, and it never made it out of the Senate. Bush wasn’t going to spend any political capital on the issue, and neither were the Republicans.”

In 2004, a constitutional ban on same-sex marriage was divisive with voters, making the chances of an amendment to the Constitution (which requires ratification by three-fourths of the states) likely impossible. But it made for good election fodder.

Many social conservatives run successful elections leaning on culture war issues. But once elected, they’ve focused on passing new and more tax cuts while making loud noises about “cancel culture” and the radical left, well aware that actually taking action on purported culture war priorities — banning pornography, for example — would be politically costly. It’s easier to focus on tax cuts and let litigators handle cultural issues at the judicial level.

As conservative writer David French put it in the Dispatch:

Why would an enterprising member of Congress take on the very heavy lift of attempting to shepherd controversial free speech legislation through the House or Senate when he or she knew that the matter was pending before the courts?

But the agenda that has been delivered isn’t necessarily reflective of Republican voters’ preferences — particularly populist voters who are more economically liberal than the Republicans they vote for. And this isn’t the only part of the Republican bargain that may be beginning to collapse, as many social conservatives view the future as one where their views will be pushed from the public square altogether.

For decades, the conservative movement focused on fusionism — “free market” principles and libertarian ideas — in the larger fight against communism. But in recent years, many conservatives, particularly social conservatives opposed to the “business wing” of the GOP, have called for abandoning that approach to shape not just a wealthier America, but a morally better one. In the absence of powerful religious institutions, they argue, government has — or should have — a role in promoting the public good.

“Social conservatives can, and will, rally around a vision that is less overtly focused on the maximization of individual liberty and freedom as normative goals by themselves, and is more focused on using the levers of government to enhance virtue, order, family formation, reshored supply chains, and the common good of the citizenry,” Hammer told me.

When I asked what he meant by the common good, he directed me to this article he wrote in which he argued that a common-good conservatism would be against “hyper-literalist free speech absolutism” and support an idea of “natural law” that would reject “natural law-subversive, individual autonomy-maximizing cases like Lawrence v. Texas and Obergefell v. Hodges.” He quotes Aristotle in saying “a state exists for the sake of a good life, and not for the sake of life only.”

Conservatives and populists argue this sentiment hasn’t made it to Republican leadership. “Rank-and-file conservatives don’t think their leaders have protected them,” one prominent conservative television personality told me. “They’re right. That’s death.”

“I think the word “conservative” has come to mean too many things that are incompatible,” Hezekiah Kantor, a pseudonymous writer for the conservative outlet American Greatness, told me, explaining: “Does ‘conservative’ mean not exercising the raw political power to end abortion on demand, internet pornography, and legalizing heroin? If that’s what it means, then yes, many social conservatives feel estranged.”

“Things could fall apart very quickly”

The loyalty many social conservatives have for the Republican Party is, for some, a matter of necessity.

As Michael Brendan Dougherty told me, “So long as Democrats promise social conservatives 40 lashes, Republicans can win while only delivering 30 or so.”

Many social conservatives didn’t support Trump initially (Sen. Cruz was a first choice). And Trump as a vehicle for the political and social hopes and desires of social conservatives was always, as Kantor told me, a “Hail Mary” of sorts, a last-gasp attempt to prevent what Kantor saw as a future of “persecution and marginalization” for social conservatives.

Trump wasn’t from the conservative movement, but some social conservatives believed it would take a Trumpian figure — uncouth and unbound by convention — to take on an increasingly aggressive left, one the Federalist’s Ben Domenech said in 2019 were “culture war white walkers, bent on utter and total destruction of everything American Christians hold dear.” But Dreher told me, “Donald Trump ran like Pat Buchanan but he’s mostly governed like Paul Ryan.”

And perhaps more concerningly for the future of social conservatism, Trump gave voice to a notion of conservatism largely untethered to any tradition, one the Week’s Matthew Walther said was “libertarian, if not libertine.” For example, in response to an American Conservative article decrying the subscription-based pornography website OnlyFans, porn actress Brandi Love wrote in the Federalist that she and her fans represent an important part of the conservative coalition:

I am both a conservative and a Christian. I am not, however, a zealot. I have travelled all over the United States meeting fans for more than 15 years. There are millions. My fan base is now, and has always been, what I like to refer to as Sex, Drink, and Rock ‘n Roll conservatives… We love God and our flag but generally dislike organized religion. We like to hang out on the deck drinking a beer, talking sports, listening to country, rock, and rap while using colorful words to describe Nancy Pelosi, Chuck Schumer, and Anthony Fauci.

So when a conservative publication runs an article wishing for an Islamic caliphate because of OnlyFans and its people, it’s a slap in the face to this significant segment of population that votes Republican. It pushes us further away from Christian political conservatism.

A Republican Party that would cater to the votes of Brandi Love and her fans would be unlikely to regulate and ultimately ban pornography as many social conservatives would like. But a Republican Party that would cater to social conservatives — a driving force for the party on issues like abortion, particularly at the state level — would never get the votes of someone like Brandi Love, or her fan base. And as Walther argued, those voters represent a large swath of Trump’s base, and millions of Republican votes.

Rather than choose between the two opposing forces, the power base of the Republican Party has decided to largely throw in the towel, and hope that tax cuts and judicial appointments will do. But it won’t. And the risk for Republicans isn’t that social conservatives will vote for Democrats — it’s that they won’t vote at all.

Dougherty told me that Bostock represented a turning point for social conservatives. “There will have to be a rethinking of how social conservatives approach politics, likely with an emphasis on realpolitik and the long term. Playing rearguard defense in every election has been a way of losing the more important fights in education and the culture.”

And it’s those cultural losses that many social conservatives believe are piling up and putting their views at risk: Kantor told me he was concerned the left would ultimately “force social conservatives to choose between their vocations and their faith or to make compromises to live underground.”

But the strongest sentiment I got from my conversations with social conservatives was that many feel used by the GOP: used for their votes, used for their voices, used to get Republicans into positions of power where they would never do what they said they would.

“The demoralization of social conservatives is profound,” Dreher told me. He said that, to be fair, he’d felt that way for years, since the failure of that constitutional amendment to bar same-sex marriage back in the mid-2000s.

But he told me, “I really did think that at least the Republicans would be reliable on judges, because that was a way of supporting social conservatives without taking political risks. I was wrong about that too. I have no illusions left to lose.”

“The point is that we can’t count on Republicans at all. We really are on our own.”