More than the Bostock decision itself, structural defects in legal conservatism spell trouble for its future as a cohesive movement.
As President Donald J. Trump prepares to leave office, many are assessing the impact his single term in office had on the nation. There are articles weighing whether he was a realigning president who was, however, incapable of fully achieving a conservative, multi-ethnic working class coalition, and there are those who wonder if his views on China or on tightening immigration may last as a Republican plank. One thing often overlooked is the List.
The List contains names of judges who Trump considered to be acceptable nominees for the Supreme Court. The List underwent many changes from when he first announced it until his final year in office, but the List changed the way many aspiring conservative lawyers and judges assessed their futures. Prior to the List, conservative jurists counted on the informal network of influence they might leverage, especially if they had been active in the Republican election effort of their senators. Perhaps even more important to one’s ultimate selection was the aspirant’s choice of school: the system focused entirely on candidates from elite undergraduate institutions, who then sought entrance to Harvard Law School or Yale Law School, which held a duopoly over appointments to the Supreme Court. Reinforcing this duopoly was the competition for clerk positions, in which Yale and Harvard alumni would hire clerks from their almae matres. The best that less-credentialed types could hope for was a district or circuit appointment, which is still nothing to sneeze at but is certainly not the same.
The List and Amy Coney Barrett
The List has likely changed all this. Consider Associate Justice Amy Coney Barrett, the first appointment to the Supreme Court from a non-Ivy in decades. Barrett graduated from the University of Notre Dame Law School, an excellent institution but not a part of the duopoly. Moreover, Barrett attended Rhodes College. Rhodes is a wonderful school, but one whose graduates were not quite what elite lawyers would expect to see on the highest court in the land. Yes, Barrett had been a clerk for the Supreme Court, serving under Associate Justice Antonin Scalia. A SCOTUS clerkship is usually a necessary but insufficient basis for a later appointment to the Supreme Court. Because she was on the List, the other credentials mattered less than before, leading her to cut through the Ivy ceiling. Other political considerations mattered, of course. Barrett was a woman replacing a female justice, and she was telegenic in a way that Trump always found especially important. Even so, her originalist credentials are what got her onto the List, even if other factors help explain why Trump selected her when he did.
The List changed the calculation for conservatives in the legal profession. Those seeking appointments no doubt must continue to cultivate informal networks of influence, as well as befriend and campaign for important elected officials. They should attempt to enter elite law schools and seek out Big Law jobs or important academic appointments. Now they must also meet the criteria to make the List.
Those criteria are set by the Federalist Society, most especially Leonard Leo. The Federalist Society is a professional legal society of conservative lawyers dedicated to originalism, which hardly needs defining for readers of Law & Liberty. Put far too simply, originalism is the doctrine of constitutional interpretation that prioritizes the original meaning or intention of the constitutional text. Originalism began as a way of constraining judges from departing from the Constitution to produce progressive policy outcomes, but it also entails rather radical reversals from the several decades of “living constitutionalist” jurisprudence that predominated until recently. Hence, though conservative, originalism is also quite revolutionary. No doubt many readers will take issue with this definition, but the point is not to define, once and for all, what originalism means but to identify the broader field of play for those who wish to make it on the List. They must be sufficiently originalist, and the Federalist Society will determine whether a potential appointment qualifies. In other words, if anyone decides who is an originalist, it is Leonard Leo.
The List has changed incentives and has thereby freed originalists to be originalists. While progressive jurists have been free to rule as progressives, conservative jurists had once stayed hidden, rendering narrow, jargony decisions that obscure their originalist bent in case they might face a hostile Senate Judiciary Committee. This introduced a problem for Republican presidents when considering who to appoint. Were these conservative lawyers being cagey out of necessity or out of a weak commitment to originalism? The only answer was to await their decisions from the federal bench, which was too late.
After numerous disappointments made their way onto the Court, originalists became more public about their interpretative philosophy to move ahead in appointments, and the logical conclusion of the recent boldness among originalists is the List. Now, to be List-worthy, a conservative jurist must clearly profess their originalist commitment. They must publicly demonstrate their originalism in decisions they make from whatever bench they happen to sit on. If they waver, the Federalist Society will take note and leave them off the List, perhaps forever.
Because Trump dutifully used the List, these incentives remained constant, signaling to conservative judges to step up their originalism. In fact, Barrett’s appointment proved that originalist decision-making overruled other advantages, such as a prestigious pedigree or good standing in a good ole’ boy network. Long gone are the days of George W. Bush attempting to appoint Harriet Miers. In fact, part of what motivated Trump to use the List was the errant comment during the 2016 presidential campaign that he might appoint his sister, Maryanne Trump Barry, to the Supreme Court. Barry had served on the Third Circuit and ruled that a New Jersey restriction on abortion unconstitutional. When Trump’s 2016 rival, Texas Senator Ted Cruz, made a campaign issue of Barry’s abortion ruling, Trump pivoted to the List. This List became Trump’s way of appealing to multiple conservative constituencies who would be well-served by more originalist jurisprudence from the federal bench, thus neutralizing this attack.
The Future of the List
Now that we have had four years of the List determining appointments to the Supreme Court, the question is whether Republican presidential candidates preserve the List after Trump’s ouster from the presidency. It is hard to see how it could not. The List is now the judicial equivalent to Grover Norquist’s old Taxpayer Protection Pledge. The Taxpayer Protection Pledge was Norquist’s way of committing Republican presidential nominees to promise they would not sign legislation to raise taxes while in office. Not to sign the pledge was to indicate to GOP voters that the candidate was not committed to the Republican platform, hence unfit for office.
Because of shifts in the Republican Party, the Pledge is less effective than it once was. The List, however, seems quite potent. The Tax Payer Protection Pledge seems to matter less now as Republicans have become less tax-averse as they once were. With the considerable role the federal judiciary plays in politics today, it is hard to see how the List goes away. Unless Congress and the presidency decide to become more active on constitutional questions, the best conservatives can hope for is a future president who will commit to the List. Those who do not indicate to GOP voters that they do not care how the judiciary rules on issues ranging from religious freedom to administrative overreach. Such a position is unilateral disarmament before progressive jurists appointed by the Democratic Party and the apparent abandonment of the large number of conservative interests in seeing the Supreme Court return to constitutional government.
Therefore, the List is likely here to stay. In the future, Republican presidential candidates will likely tout their own Lists to demonstrate their commitments to originalism and constitutional government. One might even anticipate campaign stump speeches upbraiding rivals for having inferior Lists. Otherwise, conservative jurists will return to the old prestige game and good ole’ boys clubs of yore, which have, at best, a mixed record in producing judges and justices committed to originalism. Alternately, the Federalist Society could compose their own List and demand candidates to commit themselves to choose only from the List when appointing someone to the Supreme Court. A more official list can avoid intra-partisan squabbling and withhold from the successful GOP presidential candidate any influence over who might be List-worthy.
Where is the Progressive List?
The reader may wonder why Democrats do not also have a list. Such a question requires its own article to answer, but here are some initial thoughts. Democrats have typically not required a List. Apart from Byron White, most justices appointed to the bench after 1950 have had a progressive drift. The Supreme Court has nine seats, which means that the ideological center is the “fifth” seat that often decides divisive cases. That fifth seat was where this drift was most obviously on display, such as with its previous holders of Sandra Day O’Connor, Anthony Kennedy, and John Roberts. The progressive drift in the fifth seat kept the progressive legal establishment content with the status quo. They had no need for a List when the myriad institutional influences of the Court would gradually pull leftward all except the most committed originalists. With Barrett’s appointment, it is unclear who now holds the fifth seat—or even if just one person does. Whatever the case, Barrett’s appointment moved that seat quite firmly toward originalism for reasons John O. McGinnis very capably explored recently.
The renewed originalist discipline might require those in the progressive legal establishment to devise their own, one which will no doubt pay obeisance to the identity politics en vogue today. Part of Sonia Sotomayor’s appeal was her self-identification, as she said in her now-famous 2001 speech, “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” In retrospect, Obama-era defenders described Merrick Garland as a “moderate” during their ill-fated effort to place him on the Court. “Moderate” in this case might have meant “cis-het white male” but with the same legal philosophy as his more diverse peers. Indeed, any future progressive List would no doubt be subject to the struggle over representation, privilege, and identity, since there is no real philosophical disagreement or fear of conservative drift to speak of within the progressive legal establishment. No doubt, however diverse their identities, they will all be graduates of Yale or Harvard Law Schools.
The Democratization of Conservative Talent
As Joe Biden limps into office, he might do his best to change the prevailing wisdom on immigration, or competition with China. What he cannot do is challenge the realization among Republicans that they can demand the List from Biden’s 2024 opponent. Leaving aside the ideological and partisan considerations, perhaps the biggest winners are the conservative attorneys who lacked access to the elite networks to get into Harvard or Yale Law School but who might, nevertheless, have abundant talent for work on the federal bench, even at the highest level. The most important legacy of the List is its democratization of conservative talent, wherein committed originalists from those outside the duopoly can nonetheless prove their worth by rendering decisions that are faithful to the Constitution.
Trump may not have intended this outcome, but it is likely here to stay. Barrett may not be the exception but the norm whenever there is a Republican president and majority in the Senate. The biggest losers in all of this are those who sacrificed their youth to the prestige mines of Cambridge and New Haven. The biggest winners, one hopes, will be the American people.