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27 U. Pa. J. Const. L. 1 (2025)

handle is hein.journals/upjcl27 and id is 1 raw text is: LEFT CRIT THEORY GOES TO WASHINGTON: THE ANTI-LIBERAL IDEOLOGY OF THE ROBERTS COURT Elizabeth S. Anker In this Article, and-liberalismn offers a framework for explaining certain tendencies ofthe recent decision-making of the Roberts Court. The conservative justices, it shows, are relying on a series ofarguments historically advanced by left, criacal, 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 oflaw 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 Amendmentprotecions forreligion (303 Creative v. Elenis, Kennedy v. Bremerton); andmore. The Article distinguishes three once-leftistmodes ofreasoning that have become central to the Roberts Court's jurisprudence. First a weaponizadon of qualities like indeterminacy and ambiguity has justfied 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 ofambiguouslanguage. Second, other opinions decrythe fictionalandconstructed 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 theirprejudicial exclusions. Third, classic critiques ofliberallegalism (includingofliberalideals like rationalism, secularism, andindividualism) increasingly drive the Court's decision-making, while simultaneously warranting appeals to natural or unwritten lawand what this Article describes as variants of political theology. The Article thus wrestles with the irony that the conservative https://doi.org/10.58112/jcl.27-1.1 Professor of Law at Cornell Law School and Professor of Literatures in English at Cornell University. Her books include ON PARADOX: THE CLAIMS OF THEORY (2023), FICTIONS OF DIGNITY: EMBODYING HUMAN RIGHTS IN WORLD LITERATURE (2012), the essay collections CRITIQUE AND POSTCRITIQUE (with Rita Felski 2017) and NEW DIRECTIONS IN LAW AND LITERATURE (with Bernadette Meyler 2017). She also edits the Cornell Press book series Corpus Juris: The Humanities in Politics and Law. The article has benefited enormously from audiences at Cornell Law School, Columbia University, The University of Virginia Law School, The University of Houston Law Center, the University of British Columbia, and the University of Toronto Law School. I am especially grateful to Emily Apter, Josh Chafetz, Debbie Dinner, Mike Dorf, Renee Knake Jefferson, Mitchel Lasser, Bernadette Meyler, Julie Stone Peters, Jeff Rachlinski, Aziz Rana, Kerry Rittich, Richard Re, Erik Severson, Chantal Thomas, and Brad Wendel for helpful feedback. A special thank you to Ryan Lee for his irreplaceable research assistance and to the editors at the University of Pennsylvania journal of Constitutional Law. 1

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