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From Blackmun to Gorsuch: The Conservative Legal Movement Works Itself Pure

The conservative movement in law has changed substantially in the last half century. At the beginning it was a reactionary movement.  The core consensus was that the Warren Court has been out of control, acting more like politicians focused on changing society rather like justices following the law. Insofar as conservatives even had a theoretical critique, its essence varied. One was that Court was activist in that it failed to pay sufficient deference to the political branches. A second was that it abandoned the craft of law, generally defined as following precedent or neutral principles that can be derived from precedents and legal process. A third was that the Court had abandoned the principles of the Founding or intent of the Framers. A final was substantive: the Court’s decisions, particularly in the area of criminal justice, were simply too liberal.

Fifty years on, the movement looks completely different in theory, power, and effect.  As to theory, public meaning originalism, albeit of different varieties, dominates.  While there are disagreements about the degree of deference, if any, owed the political branches, there is a growing consensus that this question is just another one to be answered by originalism.  Perhaps the most important unsettled question is the place of precedent in originalism. But the view that precedent should be a generative force in law is no longer widely supported by theorists on the right.  And since conservatives are now adherents of originalism, their methods sometimes support liberal results, particularly in the area of criminal justice.

As to power, during the Warren years, only a very few conservative scholars of public law worked in its shadow. Now originalism has many advocates in the academy and outside, and almost all conservative scholars who publish on the theory of constitutionalism are originalists. That too is a change. Until this year, when his family sadly asked that the name be changed, the Federalist Society’s prize for a young scholar was named after Paul Bator, one of the most important scholars in early movement, who was more a conservative Burkean than an originalist. And the Federalist Society itself has grown greatly in influence, disseminating originalism far more widely than were the inchoate conservative theories of the 1960s.

But the biggest difference is in effect. At the beginning the conservative movement was not sophisticated, organized, or influential. It is not surprising that the justices nominated by Republican Presidents often proved liberal, like Harry Blackmun, or moderate, like Sandra Day O’ Connor, or somewhat conservative but ineffective, like Warren Burger. Less than three decades ago the first President Bush appointed David Souter, who promptly joined the liberal block on the Court.

As the conservative movement gained strength, it was able to prevent such disasters.  It blocked George W. Bush from nominating Harriet Miers because she had no participation in the movement and no commitments to its methods.   George W. Bush’s appointments, John Roberts and Samuel Alito, were conservatives, but they have turned out be more of the Burkean kind, having been educated when modern originalism was still in its swaddling clothes.

But today the conservative movement in law now has enough power, enough intellectual coherence and a big enough bench consistently to put forward a model of an originalist justice.  If Republican Presidents have more opportunities to fill seats on the Supreme Court in the next decade, the justices will look a lot like Neil Gorsuch.

Reader Discussion

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on October 02, 2017 at 20:25:34 pm

Question: did Burke advocate judicial prestidigitation such as that evidenced by Justice Roberts in ACA?

I'm just wondering out loud here?

Or did he too make it up?

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gabe
on October 02, 2017 at 21:49:59 pm

Nominee Souter testified before the Senate Judiciary Committee that he admired Justice William Brennan, and Senator Warren Rudman later told associates that Rudman knew what he was doing in pushing his friend President George H. W. Bush for Souter's appointment. We should remember that in the 1980 GOP presidential primaries, George H. W. Bush took the position opposite that of the conservative candidate, Ronald Reagan, on every significant issue--the ERA, Roe v. Wade, the constitutionality of the Department of Education, you name it.

That Justice David Souter turned out not to be William Rehnquist II may have surprised some conservatives, but that's because they hadn't been paying attention.

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Kevin Gutzman
on October 05, 2017 at 12:25:21 pm

Thank you for your comment. I had no idea that he testified that he admired Brennan J. I think that Brennan J. was the worst justice ever appointed. I appreciate that is a large call, but he was a socialist from New Jersey who made people like Murphy J. and Wiley B. Rutledge J. look like men of the "hard right". Even Goldberg and Fortas JJ. were not any worse than Brennan J. and they did not have the intellectual firepower.

As to Blackmun J., we tend to forget that Roe v. Wade was a 7/2 majority, including the Chief and Powell J. When one realizes that at that time, White J. was one of the more conservative justices, it shows what a different era we live in. In many ways, Scalia J. is responsible for that. I think it a pity that he was not nominated for Chief. He deserved it.

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Peta Johnson
on October 05, 2017 at 19:07:57 pm

I consider William Brennan the worst justice of the 20th century, at least. His disdain for the very idea of constitutionalism, even of republican government, came to pervade the profession, and that was largely his doing. Having appointed Earl Warren and him is the great black mark on Dwight Eisenhower's presidential record.

Ronald Reagan, Edwin Meese, and the voters who put Reagan in office are responsible for the change in our constitutional culture. Antonin Scalia was an important second-rank figure in this fight, but he essentially fulfilled Reagan's hope in appointing him.

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Kevin Gutzman

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