More than the Bostock decision itself, structural defects in legal conservatism spell trouble for its future as a cohesive movement.
There is happy news from state supreme courts—more justices committed to correct methods of legal interpretation are being appointed. To name just two of the most recent additions: Rebecca Bradley of Wisconsin and Joan Larsen of Michigan as well as a still relatively recent addition, David Stras of the Minnesota Supreme Court All three have fine credentials. Stras and Larsen were professors before ascending the bench, and professors turned judges have often turned out to be the most influential of jurists.
The Federalist Society’s decision to establish chapters throughout the nation is in no small measure responsible for the flowering of state conservative jurisprudence. The Society was founded on law school campuses and then migrated to Washington, as some of its leaders took jobs in the Reagan administration. But creating a presence in the hinterlands then made it possible for lawyers of like mind to focus on the judiciary in their states. All too often, Republican governors had not paid much attention to judicial nominees’ stances on legal interpretation, believing that identification with the Republican party was enough to assure good decisions. But even Republican lawyers emerge from a legal culture that leans decidedly left, and the recognition and awards from that culture move judges to in that direction unless they come anchored in the right. The Federalist Society provides the merry fellowship that helps these jurists resist the temptation to drift.
The increase in the number of justices committed to fidelity to law on state benches has several good consequences.The first is to enlarge the farm team for future Supreme Court justices. Many commentators complain that almost all our recent justices have been judges. I believe that as a general rule that previous judicial experience has been a plus, because administrations can evaluate past interpretive pitches on the field of jurisprudence. But, sadly, the overwhelming majority of justices appointed in the last half century have been from the federal court. State court experience would provide a usefully diverse perspective, likely creating more respect for state courts and for federalism generally in the Supreme Court’s deliberations.
The second advantage is to make it more likely that state courts will provide sound interpretations of their own rights provisions, even if the right at issue is similar on its face to a provision in the federal Bill of Rights. Justice William Brennan trumpeted the need for such independence in famous article, State Constitutions and the Protection of Individual Rights. He was absolutely right that states have no obligation to follow the federal lead in this context and have the duty to give full force to their own state constitutional rights. The difficulty is that Brennan wanted these provisions to be just additional sources for living constitutionalism to reach the results he thought just, at the time that philosophy was losing adherents on the Supreme Court. The kind of conservative and classical liberal supreme court judges now being appointed will offer independent judgments rooted in the law. Perhaps these opinions will even come back to influence the Supreme Court to interpret the federal constitution in a more lawful manner.