Richard Primus is the Theodore J. St. Antoine Professor of Law at the University of Michigan Law School. Follow him on Twitter @Richard_Primus.

Monday’s abortion decision by the Supreme Court, on the last day of its term, didn’t just strike down a restrictive Texas law: It may also signal that America has passed the high-water mark in the long rise of conservatism on the nation’s highest court.

The abortion ruling, along with the court’s decision upholding college affirmative action last week, suggests an end to the court’s steady movement to the right on a broad range of issues since the appointments of Justice Antonin Scalia in 1986 and Justice Clarence Thomas in 1991. Though Republican politicians have railed against liberal and activist judges for years, conservatives have enjoyed great success in advancing their principles through the court system for most of the past half-century. The Supreme Court has had a consistent majority of Republican-appointed justices since 1970, and in recent decades it has moved the law rightward on private property, church and state, federal power, firearms regulation, criminal procedure and administrative governance. With a few notable exceptions, such as gay rights, liberal lawyers have grown accustomed to playing defense, trying to parry conservative attempts to push the law yet further in conservative directions.


But it now seems more likely than ever that conservatives will fall short of some of their most important goals in the judicial realm—and we may have reached a turning point in the history of the institution.

Last week, the court’s decision in Fisher v. University of Texas powerfully announced that the quest to end affirmative action has failed. In the late 1980s and the 1990s, the court cut back substantially on the permissibility of affirmative action, leading people on both sides of the issue to think that such programs were on the road to being banned entirely. Many observers thought that two cases involving admissions at the University of Michigan in 2003 would be the occasion of that final ban. When Justice Sandra Day O’Connor cast a deciding vote to approve Michigan’s law-school admissions system, affirmative action got a reprieve. But when O’Connor retired and was replaced by Justice Samuel Alito, a strong critic of affirmative action, opponents of affirmative action took heart, hoping that their vision of a “colorblind” Constitution was again within reach.

But it was not to be. Justice Anthony Kennedy, whose views on affirmative action have not always been clear, has now firmly endorsed the practice in university admissions, and his participation gives the court a clear majority for the proposition that in at least some forms affirmative action is constitutional. Similarly, Monday’s decision in Whole Woman's Health v. Hellerstedt indicated that a solid majority of the court intends to protect the right to choose an abortion.

Until this year, conservatives seeking to end abortion or affirmative action could plausibly think that a setback or a half-measure victory at the Supreme Court represented only a pause on the way to eventual success—that within the foreseeable future, with another case or one more sympathetic justice, the cause would be finally won. But now, with Justice Scalia’s seat vacant and Hillary Clinton the favorite to win the presidency, the movement to shift constitutional doctrine further to the right may be running out of time. If Clinton is elected and successfully appoints a successor to Justice Scalia, 6 of the 9 justices will be firm obstacles to the elimination of abortion and affirmative action. And even if the Senate continues to refuse to act on a new appointment, 5 of 8 will be, with no short-term prospect of a conservative nominee.

At that point, conservatives may find themselves in a position analogous to the one that liberals occupied in the 1970s and '80s. For several decades before that, the Supreme Court had been generally friendly to progressive causes, and liberals and conservatives alike had come to see the Supreme Court as a liberal institution. On a broad range of issues, constitutional law moved to the left. But many of the most ambitious left-leaning constitutional causes of that era ultimately fell short of their goals. The Supreme Court invalidated deliberate racial segregation in the 1950s and '60s, but it refused in the '70s to take the further step of requiring affirmative steps to end de facto segregation—with the result that many liberals animated by a vision of racial integration came to see their prior victories as hollow and the ultimate result as disappointing.

Similarly, the court in the 1970s closed the door on various liberal strategies for using constitutional law to effect economic redistribution. During the Nixon administration, leading liberals took seriously the idea that the Constitution should be interpreted to guarantee a minimum income to all adult citizens, or at least that public schools must be given equal per-pupil funding regardless of the local property tax bases of the relevant school districts. The mid-20th century era of liberal predominance at the Supreme Court closed without reaching those destinations, and many liberals went through a painful process of adjustment in the decades thereafter, realizing only slowly that the courts were no longer on their side.

The presidential election is still months away, and Clinton’s election is by no means a certainty. But if it happens, a long period in constitutional development will have come to a close. The conservative victories of the past several decades will not be for naught: A great deal of law has changed, and it will not all be unraveled. But the direction will be different. Rather than asking whether abortion and affirmative action will continue, courts will ask about this or that aspect of abortion or affirmative action on the broad understanding that the practice in some form is secure.

And rather than trying to defend a decades-old status quo against further erosion, liberal constitutional lawyers will start thinking about where they would like to take initiative. Both sides will need to go through a process of adjusting their roles, shifting from offense to defense or vice versa—as they have done before, in other directions, and as they surely will again at some time in the future.