That’s how we covertly enlisted government agencies and private employers to help defeat the kind of bigotry that marginalized conservatives in society. We let them do the work of battling the bigotry against us. It wasn’t just a few conservatives complaining about being treated like crap. Instead, we created a whole army of fussy human resources professionals rooting out discrimination against our people, spurred on by the desire to avoid any more lawsuits from conservative victims.
We made it expensive and inconvenient to hate us publicly. And after that, we focused on other key rights and freedoms—including ones that weren’t really set out in the text of the Constitution. The right not to have your public school kid indoctrinated, the right not to have to pay taxes to support freeloaders, the right to concealed carry of firearms. The liberals had spent decades finding useful things between the lines in the Constitution; now it was our turn. As one of my lawyers said, we made those penumbras emanate!
Michael Ambarian (Supreme Court Justice)
I barely recognize the justice when I walk into the Alexandria hamburger joint where he suggested we meet. He’s hunched over a view screen, working on what turns out to be his latest e-book, a biography of Antonin Scalia. His casual dress and calm demeanor belie his reputation as the most ferocious inquisitor on the High Court since his hero, Justice Scalia, retired in 2025 at age 89 a week after the inauguration of Carrie Marlowe. A half-empty pint of Guinness Stout rests on the table beside him. He notices me and motions for me to join him.
“What are ya drinking?” he asks.
I make it a point not to hire my clerks from the Ivy League schools. They used to produce nearly all of the law clerks for the entire federal system, and that kind of incest—oh dear, my critics will certainly jump on that slip—was very, very harmful to the health of the judiciary. You ended up with this kind of inbred groupthink that was inevitably progressive. I wouldn’t have a problem with one strain of thought or another generally dominating the judiciary, except that progressivism happens to stand in precise opposition to the most basic premises of our constitutional system.
But more than that, I like my clerks with a bit of seasoning. Life seasons you, not seven years at some eastern college mingling with people who are exactly like you in an environment that is not only artificial but prides itself on its artificiality. I have to say that one of the best things to happen in the last few decades is the collapse of academia as it was in the beginning of the century.
I was seasoned nicely, I think, as a young lawyer. I have to admit that sometimes I miss my days as an activist attorney fighting for social change through the law. [The justice smiles at his appropriation of that progressive cliché, and takes another drink of his stout.]
We were always working, always fighting. Every day the Obama administration would try something, some executive order that had no basis in law, or employ some practice designed to make an end run around the Constitution, and we’d go right at them.
It was hand-to-hand combat in the courts. We were in federal court all day, and then in the office until midnight. Good times. See, conservatives had used the law before—the Heller decision on guns was a good example—but mostly as a shield, trying to undo damage. The feds would try to impose some mandate or restriction that violated the First Amendment—they hated the First Amendment, because it created an obstacle to their dominance—and conservatives would react. But you don’t win by reacting!
So we took a page from the left, and we started using the law as a sword, not just a shield. We used it to force change in liberal bastions, but on our terms.
At first, we had to use the laws as they were. Later, as we started gaining political power, we could use new laws designed to facilitate our various campaigns. This was especially true at the state level—we’d work with conservative legislatures to pass laws like the ones expressly requiring faculty “religious diversity” and then use them against government agencies that discriminated against Christians and observant Jews. They hated that too.
We didn’t have those at first, though, so we had to use existing law in new and creative ways. What was great is that we used their own rationales against them. One of my favorite examples comes from our litigation against various universities over their hiring practices. Our goal was to help break the liberal lock on higher education using the courts, since their love of diversity stopped when one suggested that diversity of political thought might be appropriate too.
We found some rejected faculty candidates—we made sure they all had outstanding academic records, of course—and sued for “discrimination” based upon a “disparate impact” theory. We were basically saying that the lack of conservatives on a faculty was per se evidence of prejudice against conservatives. We had seen this in race and gender suits in other contexts, so we applied it to our context. It’s a very useful argument. You can’t really fight it—if you have 35 professors and 35 of them donated to Hillary Clinton, it’s pretty tough to argue you’ve grasped the Holy Grail of political diversity.
Now, I hate disparate impact analyses, and I think their application is facially unconstitutional. There are simply too many other factors at play to simply count beans and come to a verdict. And I unhesitatingly used disparate impact theories (and others I felt constitutionally suspect) mercilessly to defeat the progressives.
It’s not hypocrisy, though I’ve certainly heard that term misused enough in describing how my record as an attorney supposedly contradicts my record as a jurist. Hypocrisy exists when one acts in contravention of his views. My view of the law, as an individual as opposed to as an attorney, was utterly irrelevant. An attorney must, as every state bar’s regulations require, assert the interests of the client and advocate for the client using every available legal tool. The adjective for this representation that seems to reoccur often in the state codes is “zealously”—an attorney must “zealously” represent the interests of the client.
So, whether I personally thought it was a good legal theory, or bad legal theory, or an indifferent legal theory, I was obligated to assert it if it was to my client’s advantage to do so. So, I was not even remotely a hypocrite for thinking “disparate impact” and other liberal concepts were constitutionally suspect while using them to batter my opponents with them.
Of course, the progressives got clever. They would argue that political beliefs were not protected under discrimination law—basically, that “conservatives” were not a protected class. We would later get many states to pass laws expressly remedying that, but sometimes this stopped us. So we shifted—we started amending our lawsuits so that the discrimination was not merely on the basis of political views but on religion as well. We’d allege that the faculty candidate was rejected also because he was a devout Christian or an observant Jew. This had, as Kissinger might say, the added benefit of being true. Then we’d hit them with a disparate impact analysis argument on that basis. Later, we got laws specifically creating these new protected classes.
The response was hilarious. Suddenly, the faculty would be filled with these deeply religious, devoutly spiritual academics who couldn’t possibly discriminate against a fellow believer. So, I would take these depositions of these freshly minted theologians and ask tough questions like, “What church do you attend?” and “When did you last attend it?” and, my favorite, “So what’s the minister’s name?”