fbpx

Legal Conservatism After Bostock

Over the last decade, several political scientists have explored what is often called “the legal conservative movement.” These scholars have almost uniformly taken the view that the movement has been a success, mounting a “conservative counterrevolution” on the judiciary, bar, and legal academy. For several years, I was the only scholar challenging this narrative. But that changed last week, when several commenters supported my assessment after the Supreme Court’s landmark decision in Bostock v. Clayton County to extend Title VII to include discrimination on the basis of sexual orientation.

Bostock: Betrayal or Triumph?

The Bostock decision immediately sparked widespread criticism of legal conservatism. Consider, for example, how Daniel Horowitz wrote that “the ‘conservative’ legal movement, which has promoted the idea of ‘appointing better judges’ rather than fighting the entire concept of judicial supremacism, has failed miserably.”

Josh Hammer was even more vituperative in his analysis: “Bostock . . . lays bare the moral and intellectual bankruptcy of the conservative legal movement,” a movement whose “various institutional vessels, such as the Federalist Society, have failed conservatism.” Unless we get “a more forceful conservative legal movement,” Hammer forebodingly concluded, “the conservative legal movement deserves to perish.”

The big bang came from Senator Josh Hawley, who claimed that Bostock reveals how easy it is for judges to “invoke ‘textualism’ and ‘originalism’ in order to reach their preferred outcome.” Bostock, Senator Hawley concluded, underscores how these twin pillars of the legal conservative movement can be used to achieve progressive results. In this sense, Bostock “marks a turning point for the legal conservative movement,” in that it “represents the end of the conservative legal movement, or the conservative legal project, as we know it.” Like Hammer, Senator Hawley called for a new movement: “Let this be a new beginning, let this be the start of something better.”

While I of course find satisfaction in such significant figures agreeing with the thrust of my research on the legal conservative movement, I do not agree entirely that Justice Gorsuch and Chief Justice Roberts have betrayed conservatives, or for that matter, the social movement that put them on the Court. The betrayal, if it can be called that, happened long before these men were appointed to the Supreme Court.

In a very important sense, people like David French and Ilya Shapiro are right in claiming that the Bostock decision, even if one dislikes the result, represents a victory for the legal conservative movement’s commitments to statutory textualism and constitutional originalism.

This triumph, however, should not allay concerns about the movement’s status and future. On the contrary, the fact that the same event can be seen as both a triumph and a betrayal by members within the same movement is revealing of the movement’s structural defects.

Below, I will explore three structural defects in the legal conservative movement—defects that explain why these triumph-betrayal divisions occur on the legal Right and not on the legal Left. Together, these defects, more than the Bostock decision itself, spell trouble for the future of legal conservatism as a cohesive movement.

Substance Versus Form

First, the movement never worked out its arbitration between the tugs of substance and form. The legal conservative movement was initially organized around substantive opposition against the Warren Court. But legal conservatives used the language of form to address those substantive concerns.

This was not a significant problem until the Federalist Society became the dominant organization within legal conservatism and, shortly thereafter, originalism became the organization’s unifying idea. As a result, originalism became not merely a mode of interpretation favored by legal conservatives; originalism became indistinguishable from legal conservatism.

An ideological asymmetry in legal discourse emerged: While the legal Left was occupied with how to make the law fulfill its moral promise (which for liberals means the promise of more equality), the legal Right became a linguistic society, a movement devoted to an interpretive theory above anything else.

Consider how this ideological asymmetry plays out in post-decision analyses. Everyone knows when the legal Left wins or loses. Extending gay rights, minority rights, abortion rights, etc.—those are all liberal wins. The legal Right, however, crumbles into pieces in such post-decision analyses, because many decisions can be represented as wins for conservatives by selectively invoking the dueling values of substance and form.

This is precisely why, after liberal decisions like Obergefell, there is a mad rush among conservatives to explain how the substance of that decision could have been reached through a conservative form. The result is that even participants within the movement miscalculate the movement’s trajectory and fail to take stock of how much they have lost along the way.

Conservatism Versus Libertarianism

Second, the movement never sought to reconcile its dueling commitments to conservatism and libertarianism. Fusionism (the combination of libertarian and traditionalist values) may have worked in the early days of National Review, because in that era—mostly due to the common enemies represented by the Cold War and the Warren Court—the differences between conservatives and libertarians did not matter as much as they do today.

Consider a revealing point made by Roger Pilon in a 2008 Federalist Society debate with Judge Robert Bork. Pilon observed that “a major divide between conservatives and libertarians” is over whether (1) “the Fourteenth Amendment wrought few changes in our federalism” (this is the conservative position), or (2) the Fourteenth Amendment “incorporated against the states, ab initio, not only most of the Bill of Rights but our common law and natural rights as well” (this is the libertarian position). Pilon traced this division to “the infamous Slaughterhouse Court of 1873,” a division that “continues today, in many variations.”

As long as legal conservatives insist on being seen as “the good guys” within a progressive moral framework, originalism and textualism will twist and turn to produce progressive results.

Pilon is right, but he understates the significance of this disagreement. It is not a mere disagreement over doctrine; it is a division that lies at the core of American constitutional law. On the one hand, there is the view that the original constitutional order was not substantially changed in 1868, leaving intact a robust role for local governance and voluntary associations. On the other hand, there is the view that the Fourteenth Amendment displaced the 1787 design, making individual rights, enforced by the federal judiciary, the centerpiece of our constitutional order.

I am not saying one of these views is necessarily right or wrong as a descriptive or normative matter. I am saying, however, that these views are irreconcilable with one another. And the former view opposes legal liberalism, whereas the latter does not.

The Lure of Liberal Morality

Third, the movement has been unable to resist the moral and cultural pressure presented by legal liberalism—the predominant ideology within the legal academy, elite law firms, and judiciary.

This pressure is apparent in the strategies adopted by the architects of legal conservatism—namely, the strategies adopted by Michael Horowitz (author of the influential 1980 memorandum that led to the Federalist Society) and Clint Bolick (a key figure in shaping the movement’s litigation agenda). Both Horowitz and Bolick emphasized the need for legal conservatives to be seen as “the good guys.” As Horowitz explained in his memorandum, conservative organizations had to “exhibit idealism and provide an opportunity for conservatives to be seen on the side of the ‘good guys.’”

But who are “the good guys”? Both Horowitz and Bolick sought to gain the moral upper-hand under the progressive hierarchy of victimhood by showing how conservatives—and not liberals—“were the true inheritors of the civil rights struggle.” This meant that legal conservatives had to be on the side of an expansive Fourteenth Amendment. And that meant that legal conservatism had to become more like legal liberalism.

This particular conceptualization of who is a “good guy” was not required by law or policy. It was a strategic choice. Indeed, Horowitz and Bolick could have proposed an oppositional legal morality by shifting conservative attention to such sympathetic causes and groups as the rural poor ravaged by urbanization and globalization; traditional families torn asunder by our culture’s sexualization, materialism, and secularism; homeschoolers struggling under onerous educational regulations; and blue-collar workers increasingly displaced by federal trade and immigration policies.

These problems were all beginning to materialize at the time that legal conservatism coalesced into an organized movement, but Horowitz and Bolick did not focus on any of these issues. Why not? Because, under the progressive hierarchy of victimhood, the rural poor, traditional families, homeschoolers, and blue-collar workers are not “the good guys.”

As long as legal conservatives insist on being seen as “the good guys” within a progressive moral framework, originalism and textualism will twist and turn to produce progressive results. No matter how big the Federalist Society budget becomes, how long Republicans control the Supreme Court, or how many times federal judges recite the magical incantations of textualism and originalism—the result will be the same: legal conservatism will not halt the progressive march through our constitutional order.

Moving Forward

These failures, as noted by Senator Hawley in his speech, can quickly turn into a political liability for a Republican Party that has derived significant power from campaigning on the importance of judicial nominations. Bostock is a wake-up call, a rude reminder, akin to the 2016 populist revolt, of a movement in need of change.

In seeking such change, however, the movement should be careful not to make two errors that are currently tempting its loudest critics. 

First, we must not confuse the chronology. It is not time to think “beyond originalism” as much as it is time to think before originalism—i.e., on the social substrate necessary for constitutional meaning to survive. Originalism cannot operate when the prerequisites for American constitutionalism (such as local governance, voluntary associations, and family units) are decaying.  

Two, we must not confuse our particulars. Critics tend to focus on how particular justices have betrayed a broad mass of conservative activists and voters. But this focus obscures how the conservative movement, as a collective enterprise, has betrayed the particular ways of a people. 

Healthy change will neither condemn originalism as a theory, nor single out particular judges as traitors. It will, instead, redirect legal conservatism toward the American ways of life that can sustain originalism. This will require legal conservatives to frame their agenda and arguments within a distinctly conservative moral framework—one focused on the conservation of a traditional order of faith, family, and community.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on June 29, 2020 at 09:40:00 am

Patrick Henry is frowning at professor Merriam. The universal practice for over 130 years, including the era of the 'slaughter house', was one in which Coke's golden rule of Statutory construction reigned, CJ Marshall's 'wholesome' approach not conflicting. The greatest single deficiency of modern jurisprudence is its failure to sustain context, equally deficient amongst historians in their anachronism, whose craft was influenced until modernity more by law in the history, and there to the narrative, than philosophy, much less ideology, in the analysis. The impact of European ideology on American jurisprudence in its historicity is no less profound than the departure from judicial decision making in the precedent pursuant to the rule of analogy, an uniquely Anglo-American practice despite the still birth attempts of Hotman and Savigny, the Roman emasculated by their failure to sustain insularity. The failure of our judges to demonstrate a grasp of the importance of continuity, regularity, and immutability historically grounded in working fundamentals of common morality as opposed to flights of idealistic aspiration within a spectrum of moral relativism is at the heart of an emerging coercion departing from the independence of the former, and there to the individual, in favor of massive concentration in accordance with abstract formulation, something which the profession has historically regarded with suspicion if not abhorrence. It has been, since continental practice in its natural cum ideological sociology supplanted practical religion spawning the inductive reasoning at the heart of both the scientific method and our historical jurisprudence. Professor Merriam, like the rest of the legal academy, needs a revival of ole time law if he truly wants a restoration of good ole social and legal order. And that, to the discerning, is not 'original', it more closely approximates the truth respecting human relations, believed always, everywhere, by most of Christian civility, and a great many who never quite got there, its unique flavor covering the spectrum of human experience combining the material with the ascetic in a wisdom that has never been equaled.

read full comment
Image of gdp
gdp
on June 29, 2020 at 10:25:45 am

Those who desire to create a god in their own image, by rendering onto Caesar or themselves, that which Has Always and Will Always, belong to God, orienting themselves away from The Logos, The Word Of Perfect Love Made Flesh, and towards the atheist materialist overpopulation alarmist globalist, who deny our Founding Christian Principles, and thus deny the fact that God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage, and thus The Author of our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, the purpose of which can only be, what God intended, cannot claim to be innocent when all hell breaks out, as our unalienable Rights become alienable and the sheep are scattered.

“Matthew 26:31 Then Jesus said to them, "This very night you will all fall away on account of Me. For it is written: 'I will strike the Shepherd, and the sheep of the flock will be scattered’.”

The best way to scatter the flock, is to deny The Unity Of The Holy Ghost through the erroneous claim that there is more than One Son Of God, One Word Of God Made Flesh, One Lamb Of God Who Can Take Away The Sins Of The World, Our Only Savior, Jesus The Christ, and thus by denying the essence of being in essence, from the moment of conception, a beloved son or daughter, while denying the inherent personal and relational essence of Life-affirming and Life-sustaining Complementary Love.

Originalism and textualism twisted and turn to produce progressive results, is no longer originalism or textualism; one cannot change The Spirit Of The Law, without changing The Letter Of The Law, and therein lies the crux of the matter.

The denial of The Unity Of The Holy Ghost and thus the fact that “It is not possible to have Sacramental Communion without Ecclesial Communion”, due to The Unity Of The Holy Ghost, is the source of all heresy.

read full comment
Image of Nancy
Nancy
on June 29, 2020 at 11:05:12 am

Bostock is the Roe v. Wade of the 21st century. Bostock fabricated a constitutional neologism, a new, artificial, legal meaning of the word "sex," which repudiates nature and denies the word's traditional, scientific, moral, religious and culturally-accepted meaning of the word "sex," just as Roe fabricated a new, artificial, legal meaning of "life" which denied nature and repudiated the traditional meaning of "life," with its scientific, religious, culturally-accepted, moral substance.

Like Roe, Bostock goes to the heart of biology, life, morality, religious faith, common good community and republican governance. Like Roe, Bostock has wrought yet more social rancor and fueled the already-raging fires of political and judicial conflict.

Not stars and stripes, but cases and controversies forever.

Strife without end, Amen.

Thus spoke Zarathustra.

But in their Nietzschean heroics, our constitution's Ubermensch spoke even more than all that. Their words fractured the ranks of constitutional conservatism, the nation's Horatius at the Bridge if we are to save the republic.

In three ways this essay is indicative of the fissure's depths and dangers:
1) This essay argues that the reasoning of Bostock is a victory for originalism and textualism and says nothing about Bostock's results other than that it was the wrong outcome. Those 2 positions are contrary to what I believe is the substantial consensus of constitutional conservatives. That the essayist is reduced to citing David French and Ilya Shapiro as evidence of his point supports my opinion about the negative opinion of the vast majority of conservatives as to the reasoning of the Court's opinion.

I hold the opinion that Gorsuch's opinion is a patently strained, grasping-at-straws attempt to avoid drowning in his own law-making, the futile struggle of a soi-disant originalist and textualist to avoid the ineradicable accusation that, at least in Bostock, he was a crypto-advocate of a rationalized consequentialism which William J. Brennan would, and RBG did, warmly endorse. With friends like that constitutional conservatives need no enemies.

The baffling reasoning of the Court's opinion aside, it should also be baffling that conservatives could, for any reason, call the Bostock disaster a victory. General McClellan was given to such fatuous pronouncements. That conservatives disagree strongly about both the reasoning of the Bostock opinion and the grave danger its result poses as precedent bodes ill for the capacity of conservatives to blunt Bostock's deadly judicial metastasis. Justice Gorsuch's blithe dismissal of the danger to be perceived in future cases was disingenuous if not constitutionally irresponsible.

2) The essay argues that Bostock is the consequence of confusing the form of originalism with the substance of legal conservatism. In effect the essay argues that the conservative reaction to Bostock has made visible the tip of an iceberg that was long in the making by force of an unrecognized accretion of the ice of originalism onto the substance of legal conservatism. This, too, will be hotly (sorry) debated and a matter of permanent and atrophying division between conservatives who think originalism mere interpretative form or process (as does the essayist and David French) and originalists who consider it a matter of constitutional substance (as in what's the use of a written founding legal document if its meaning is a matter of historicism and subject to change with the times?)

I hold with the latter and think originalism has not been confused with constitutional conservatism but, in fact, is the essence of constitutional conservatism; that originalism is substantively indispensable and that the deficiency exposed by Bostock is the failure of originalists to moor the ship of originalism to the anchor of originalist common good, as it was so anchored by the Founders.

In any event, this division, too, among conservatives is atrophying of the strength of alliance in their existential fight against the political forces of evil.

3) The essayist argues that legal conservatism has two continental divides, that of "Conservatism Versus Libertarianism" and that of "The Lure of Liberal Morality." I will explain my disagreement with the essayist's continental divides analysis after a belated breakfast. For now, it is important to note that these intellectual/political divisions, as with the several discussed, infra, also weaken the indispensable alliance of constitutional conservatives in the important war for the hearts and minds of five Supreme Court Justices.

read full comment
Image of paladin
paladin
on June 30, 2020 at 16:16:58 pm

“Bostock is the Roe v. Wade of the 21st century. Bostock fabricated a constitutional neologism, a new, artificial, legal meaning of the word "sex," which repudiates nature and denies the word's traditional, scientific, moral, religious and culturally-accepted meaning of the word "sex," just as Roe fabricated a new, artificial, legal meaning of "life" which denied nature and repudiated the traditional meaning of "life," with its scientific, religious, culturally-accepted, moral substance.”

True. Both these cases contain errors in both Substantive and Procedural Due Process Law, resulting in the denial of the essence of being, in essence a beloved son or daughter from the moment of conception.

read full comment
Image of Nancy
Nancy
on June 29, 2020 at 13:11:57 pm

It shouldn't be a big surprise that the views of Republican nominated justices reflect the views of the Republican donor class. The views of that class are as socially progressive as the views of most Democrats. Generally, it is only in matters of business regulation and corporate rights that judges and justices masquerade as legal conservatives. The Scalias and Borks of this world, who were legal conservatives in the fullest sense, are gone for good.

read full comment
Image of Nick Otis
Nick Otis
on June 29, 2020 at 13:16:17 pm

As a legal layman, I found this essay very helpful in understanding our present predicament for conservative judicial “activism”. The next time our (Republican) Senators are asked (required?) to interview a prospective federal judicial nominee, they should read (or reread) this essay as part of their duty to provide advice and consent. They should also reflect deeply on the reality behind the language in the Declaration of Independence while moving to retain as much of the spirit of those words as possible. This would enhance their contributions to establishing and maintaining a reality-based conservative legal and social polity.

All men are not created equal, but we maintain that legal fiction to help ensure we all receive at least the same level of protections as the wealthiest and most powerful among us. This assertion is not truly “self-evident” unless perhaps you were reared in a society and culture derived from the Judaeo-Christian tradition, bolstered with experience from English common law and the insights supplied (at minimum) by the English/ Scottish/ American Enlightenment. We are not endowed with “rights” (negative or positive) in our DNA (nor universally embedded in our psychology), or else the long string of absolute monarchs and despots pre and post 1776 would not exist (have existed). The creation of actual rights requires recognizing their merit, demanding they be supplied, and fighting for them when they are absent. This is all accomplished via the exercise of (usually new) social norms, derived from experiences when such rights did not exist (e.g., trial by jury, same sex “marriage”) but are subsequently judged (by judges and/or citizens) to be valid and acceptable or desired.

The same applies to the flawed focus of progressives on “equality” rights. Progressive efforts to generate rights are preceded by attempts to generate flawed social norms, typically that deny our human nature and extended past experience. Conservatives need to require “tough love” in all that is realistically possible, and explain why even then we really are the “good guys” compared to the progressive’s fostering reliance on government and promoting dependency. Attempts to obtain equality of opportunity are close enough to practical achievement that they merit the legal and social effort (perhaps even a period of affirmative action bias), but absolutely ensuring equality of outcome is clearly impossible and must never be allowed as the standard to be realized. Liberty is not license: we cannot demand that others overcome our limitations for us; nor let them demand that we overcome their limitations for them. The good guys do not have to also be the foolish guys (and gals). [I see that Paladin has now supplied a very good description of said foolishness.]

read full comment
Image of R2L
R2L
on June 29, 2020 at 13:18:05 pm

It is rare that I do not fully concur with our Valiant Knight, Paladin; however, in this regard I should like to offer an alternative explanation:

"I hold the opinion that Gorsuch's opinion is a patently strained, grasping-at-straws attempt to avoid drowning in his own law-making, the futile struggle of a soi-disant originalist and textualist to avoid the ineradicable accusation that, at least in Bostock, he was a crypto-advocate of a rationalized consequentialism ..."

Agreed completely with the first clause.
However, I believe that gorsuch intended to be seen as a consequentialist as part of a foolhardy effort, advanced by some Libertarian *originalists* to demonstrate that Originalism, too, can (properly?) yield results that a) are consistent with the progressive zeitgeist and b) may run counter to conservative (my kind, that is) thinking / precepts. In so doing, the advocates of such a delusional strategy believe that they will minimize the "fright factor" attendant upon claims of "originalist" judges.
As Chief Oracle roberts attempted to preserve the stature of the court with his Obamacare legerdemain, gorsuch "gorsuched" it, in order to preserve the palatability of originalism. gorusch's explication of "sex" has all the logical force and seems to be working as well as roberts machinations with "taxation."

Secondly, Merriam provides an analysis that would make Nicki Machiavelli blush. It is "all techne, all the time" and Merriam succeeds brilliantly in avoiding any substantive discussion of the *substance* of conservative jurisprudence, instead providing a "round by round" account of the blows and counterblows (weak wristed and ineffectual as always) of the conservative, originalist legal academicians / jurists. In this I heartily agree with Paladin.
There is MORE, much more to conservative originalism than may be read in essays, books and legal treatises proffered by the "informed" technocrats of originalism. It is called morals, good sense and common wisdom abetted / buttressed by tradition, both legal and cultural. BUT more than that, if originalism is now also determined to destroy the precision of language, then WTF is it good for?
Oh, how foolish of me! That's right - to preserve either the Court of the exalted STATUS of Originalism.

read full comment
Image of gabe
gabe
on June 29, 2020 at 15:53:22 pm

Allow me, if I may, to propose a diagram representing the issue. Take a piece of paper and draw two squares, side by side. Label the square on the left "society," the one on the right "government." Now draw an arrow from the square on the right to the square on the left and label this arrow "interests" and below this an arrow directed in the opposite direction labeled "law." Finally, draw another square above these two, with a downward-pointing arrow, and label this square "Constitution."

Now the controversy arises from where the downward pointing arrow is directed. To the conservative and the libertarian it is directed at the arrows between the two lower squares, i.e. at the relationship between society and government. To the progressive and the judicial activist, this arrow points directly at the square labeled "society." In this case the Constitution is used or interpreted, not to manage the relationship of society and government, but to directly impose standards, principles, ideologies, and behaviors on society.

Sone Originalists see to be happy if the downward-directed arrow is labeled "originalism" regardless of where it is directed. Constitutional conservatives and libertarians are perturbed if that arrow is directed anywhere other than at the relationship between society and government. What Gorsuch has done, and what Roberts and Kennedy have done is determined that they can get away with directing that downward arrow at society (and thus the institutions that it contains such as the family, morality, freedom of association, etc) if they are clever in how they label the arrow. It is the urge to find Constitutional authority to directly impose upon society (change where the arrow points) rather than provide stewardship to the relationship between society and government that temps Justices such as Kennedy, Roberts and Gorsuch. It is the illusion that society needs to be guided by "right-thinking" philosopher-kings who must occasionally borrow the authority of the Constitution to accomplish purposes for which it was not intended. "We the People" ordained and established the Constitution; justices who mistake appointment by a president and confirmation by the Senate for divine selection seem to think the Constitution should "ordain and establish" a society worthy of the justices' half-baked philosophizing.

read full comment
Image of z9z99
z9z99
on June 30, 2020 at 09:39:30 am

With all due respect, when any Branch Of Government serves to “directly impose standards, principles, ideologies, and behaviors on society”, that deny the essence of The Inherent Complementary Equal Dignity of the human person as a beloved son or daughter, brother or sister, husband or wife, father or mother, they are coercing unjust discrimination against our inherent Dignity of the human person as a beloved son or daughter, brother or sister, husband or wife, father or mother.

read full comment
Image of Nancy
Nancy
on June 29, 2020 at 17:47:20 pm

So, to resume where I left off this morning with the remaining two points of my disagreement with the essay.
The essayist argues that legal conservatism has two continental divides, that of "Conservatism Versus Libertarianism" and that of "The Lure of Liberal Morality." The first assertion is that conservatives and libertarians disagree over the 14th Amendment, with libertarians seeing it as an opportunity for Court to do unto living constitutionalists what they have been doing to us since the Warren Court and conservatives seeing the 14th Amendment, to use the essayist's words, as believing that with adoption of that Amendment "the original constitutional order was not substantially changed, leaving intact a robust role for local governance and voluntary associations." The second assertion is that conservatives on the Court have sought to be the moral "good guys" by adopting the Left's narrative of victimhood, thus producing living constitutional outcomes.

Both arguments seem invalid to me based on empirical observation.

While (perhaps) many libertarians have unwisely supported expansive 14th Amendment interpretations of the Due Process Clause as a means ostensibly of expanding personal liberty and minimizing government's legislative intrusion this has surely been at the cost of greater government intrusion and centralization, via the unelected judiciary, and the gross diminution of federalism, results abhorred by libertarianism and small government advocates. Further, that an aversion to government intrusion would motivate conservative Justices to expand the intrusiveness of government seems illogical, self-defeating and, arguably, contrary to the principle of non-contradiction.
I would also argue that no serious constitutional conservative ever harbored the illusion that "the original constitutional order was not substantially changed" by the 14th Amendment.

Finally, I can think of no Supreme Court decision where disagreements over the DPL Clause between conservatives and libertarians has led to an outcome favorable to the Left or where a true constitutional conservative has supported a living constitution outcome so as to be a "good guy." The notion strikes me as farfetched.

The problem for conservatives has been decades of key swing votes to the Left, by Blackmun, Stevens, O'Connor, Kennedy and Souter and now by Roberts that would seem the consequence not of their so-called principled libertarianism ( I am sure neither can be accused of that) or of their "good-guyism," but rather the utter failure of Nixon, Ford, Reagan and both Bushes to properly vet them and of their patently inferior legal skills, a problem recently aggravated both by Roberts' personal animosity for President Trump and by Roberts' obvious inability to lead the Court, itself the consequence of what is becoming apparent, that Chief Justice Roberts is an exceptionally small man in a very big job.

read full comment
Image of paladin
paladin
on June 30, 2020 at 12:00:18 pm

The sexual revolution was far advanced by the time the conservative legal movement (“CLM”) got underway. And though the CLM has exerted meaningful influence, it never could match the transformative power of the sexual revolution. As Professor Harold Berman explains, a revolution effects “a rapid change, a violent change, a lasting change, in the political and social system of a society, involving a fundamental change in the people themselves – in their attitudes, in their character, in their belief system.” Law and Revolution II at 3.

Obviously, law professors, lawyers, and judges are as susceptible to revolutionary transformation as anyone else, perhaps more so. Thus, conservatives should not be surprised when Professor Berman observes that each revolution he studied “eventually produced a new body of law that reflected some of the major purposes of the Revolution.” Id. The sexual revolution we are experiencing is no different. We are witnessing a new body of law come into being.

Conservatives would do well to study what typically happens during the course of a revolution. We should attempt to determine where in the revolutionary process America is at this time, and what the next phase of the revolution likely will be. If we can make a fairly accurate assessment of the current state of affairs, we are less likely to be caught off guard.

read full comment
Image of Schiffer Bartels
Schiffer Bartels
on June 30, 2020 at 16:01:33 pm

Perhaps this will help you to understand where the revolutionaries wish to take us:

https://www.lifesitenews.com/news/un-secretary-general-calls-for-global-governance-with-teeth

read full comment
Image of Nancy
Nancy
on June 30, 2020 at 15:38:32 pm

Apropos of nothing (I guess) here is a link to a piece on Monday's SCOTUS decision Seila Law vs CFPB.

Gee, sometimes a "conservative Justice" may actually act like one without the unpleasant tendency to gorsuchize COTUS.

https://originalismblog.typepad.com/the-originalism-blog/2020/06/are-most-independent-agencies-unconstitutional-after-seila-law-v-cfpbmichael-ramsey.html

read full comment
Image of gabe
gabe
on June 30, 2020 at 17:59:34 pm

Roberts screwed that up, too. Coulda, shoulda addressed the full panoply of issues re not just the President's power to remove one agency head but also the power to remove in multi-membered agencies. Justice Kagan, in dissent, called him out on that, and she is right. Also, Roberts deployed that unconstitutional trick of "severability" to avoid addressing all of the other major separation of powers issues, including the agency's plenipotentiary power to promulgate rules, adjudicate cases and decided adjudications and its financial unaccountability to Congress for funding and to the President/OMB for budget control.

Roberts is a small-minded Justice.

read full comment
Image of paladin
paladin
Trackbacks
on June 29, 2020 at 17:27:43 pm

[…] most bracing was written by Jesse Merriam before the decision came down. Over at Law and Liberty, Merriam holds that “the [conservative legal] movement never worked out its arbitration between the tugs of […]

on June 29, 2020 at 17:41:06 pm

[…] most bracing was written by Jesse Merriam before the decision came down. Over at Law and Liberty, Merriam holds that “the [conservative legal] movement never worked out its arbitration between the tugs of […]

on June 29, 2020 at 18:48:18 pm

[…] most bracing was written by Jesse Merriam before the decision came down. Over at Law and Liberty, Merriam holds that “the [conservative legal] movement never worked out its arbitration between the tugs of […]

on June 29, 2020 at 21:09:53 pm

[…] most bracing was written by Jesse Merriam before the decision came down. Over at Law and Liberty, Merriam holds that “the [conservative legal] movement never worked out its arbitration between the tugs of […]

on June 30, 2020 at 00:45:07 am

[…] most bracing was written by Jesse Merriam before the decision came down. Over at Law and Liberty, Merriam holds that “the [conservative legal] movement never worked out its arbitration between the tugs of […]

on June 30, 2020 at 01:19:44 am

[…] most bracing was written by Jesse Merriam before the decision came down. Over at Law and Liberty, Merriam holds that “the [conservative legal] movement never worked out its arbitration between the tugs of […]

on June 30, 2020 at 03:32:58 am

[…] most bracing was written by Jesse Merriam before the decision came down. Over at Law and Liberty, Merriam holds that “the [conservative legal] movement never worked out its arbitration between the tugs of […]

on June 30, 2020 at 06:33:31 am

[…] most bracing was written by Jesse Merriam before the decision came down. Over at Law and Liberty, Merriam holds that “the [conservative legal] movement never worked out its arbitration between the tugs of […]

on June 30, 2020 at 16:37:42 pm

[…] most bracing was written by Jesse Merriam before the decision came down. Over at Law and Liberty, Merriam holds that “the [conservative legal] movement never worked out its arbitration between the tugs of […]

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

Related