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Just a month ago, in a harbinger of things to come, the conservative side lost in the D.C. Circuit Court of Appeals, and almost no one seemed to notice. It was one of those cases in which the expansive powers of the administrative state come into possible conflict with the moral logic of the separation of powers. In Lucia v. SEC, the argument centered on the question of whether administrative judges are wielding the power to settle cases decisively and issue orders, even though they are not appointed and confirmed as judges according to the form prescribed under Article III of the Constitution. The complainants lost with the unanimous judgment of a panel of three judges—two appointees of Obama and one of Clinton.

The argument of the complainants might not have offered the strongest case against the incursions of the administrative state, and yet the outcome had the eerie ring of things sure to come. It also touched on things that now bitterly divide conservative lawyers from the Never Trumpers. The lawyers may have as much of an aversion as I’ve had to Donald Trump, but they are the ones who are sent into court to resist the mandates of Obamacare and to defend the Little Sisters of the Poor, the owners of Hobby Lobby, or the doctors and nurses who are invoking their rights under Hyde-Weldon Act not to be forced to participate in abortions. These lawyers have a vivid sense of what is at stake in this election. They know what they are facing already, and what they will be facing in deeper measure when Hillary fills more of the lower courts with the kind of judges appointed by administrations of the Left—young lawyers from the best schools and the professoriate, ready to sustain any measure brought by a leftist administration. At a recent gathering in Washingon, D.C., a conservative lawyer, active in the bar of the Supreme Court, turned furious when he heard the declarations of a Never Trumper: “Get hold of yourself,” he said, “and get serious. Look at what is plainly before you.”

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