Legal Conservatives Now Want to Move Beyond Originalism

[Skill and Chance]

Vermeule has held these beliefs for 20+ years so he's not the best messenger.  However, there's a faction of the conservative legal movement that is getting increasingly tired of Gorsuch and this will only intensify if, as many expect, he provides the 5th vote for LGBTQ employment protections under the CRA.  That's what this is about. 

[Skill and Chance]

I don't know that this sort of thinking has really found it's way into the mainstream of legal conservative thought. That being said, many figures on the right have become more critical of Originalism as of late. George Will recently criticized it and advocated for the view that certain "natural rights" are inherently protected by the Constitution without being listed, and in a similar vein many libertarian conservatives have embraced the 9th Amendment as a magical rights making machine that protects everything they like, but not stuff they don't like view. I think this is sort of the social conservative response. Still, I don't know that we will see anyone with views this extreme in high judicial office any time soon. I hope originalism remains dominant among conservatives, but I do think the consensus is starting to break down, and there has been evidence of this for some time.

The problem with originalism as the strict constructionist subspecies of choice is that you really can't establish any one "original intent" of any legislative text since dozens or hundreds of people each had their own reasons for voting on it. How the meaning of the text would have been understood by the original audience after it was passed into law makes more sense as a question to ask, but I tend to look at that as a subspecies of textualism rather than of originalism.

Which is a very fair point, and think that confusion over original intent has helped to precipitate some of these divisions. I do think though that original meaning is, in general, the mainstream originalist doctrine, though. You are right to say that it is basically textualism applied to the Constitution, but I don't think that means it's not originalism. I think Scalia basically argued this pretty much explicitly from time to time, basically saying originalism and textualism were two sides of the same judicial philosophy.

I have always thought a natural law approach that errs toward the broad side rather than narrow was more consistent with the goal of the Bill of Rights and Reconstruction Amendments. 

I still oppose stuff like Lochner and Roe though. 

[Skill and Chance]

Vermeule really needs to ground his "common good" concept in actual Scripture or else he's just going to enable non-GOP policies -- M4A, GND -- which is really the opposite of what he's looking for from a partisan label.

Whatever the hell else Vermuele is ideologically, it really doesn't seem like he's a generic Buckleyite fusionist, so I wouldn't be shocked if he actually does favor more state involvement in things like health care and industrial/energy policy than you see with textualists/originalists.

Vermuele is very pro-administrative state and has been trying to warn conservatives off of their legal challenges to agency deference for years.   

[Skill and Chance]

Any evidence for this ludicrous claim? Like any at all? Or are you just desperately trying to avoid grappling with the fact that your preferred party attracts a lot of fascists?

This is a prediction about the future, but let me explain my reasoning. Confidence in American institutions has been declining since the Watergate scandal, and the GOP has built a base centered on those Americans who feel most alienated from institutions -- initially, the religious right, but increasingly a majority of non-educated people in the country. There is absolutely no indication that the decline in trust -- which accelerated during the Trump Administration and the COVID crisis -- is going to stop anytime soon; if anything given a projected peak in higher-education enrollment in the US in 2026 we're likely to see it expand to more educated people (unless such a peak is pushed off, or higher education manages to radically reinvent themselves). People in the US have very low confidence in government to solve problems, to the point that -- per referendums -- well more than half of Americans are willing to cut spending, and cut/refrain from raising taxes on the wealthy, as a balm to the country's problems. The likeliest future President under age 75, per current polling, is a man best known for winning wide popularity by daring to basically not fight COVID.

If these trends continue, then ideological people who wish to use the power of the state to do anything -- like Vermeule -- will need to band together in a single force; in practice every actual thing a Republican Administration does (consider Trump's judicial appointments tending to disempower bureaucrats, or the more successful state government in the 2010s funneling money to barely-accountable charter schools with diverse religious/ideological backgrounds) takes us further from a place where the government is even theoretically able to carry out the sort of reforms Vermeule would want.

(An interesting tell here is that Vermeule/Ahmari/Vance many 'populists' have converted to Catholicism or Eastern Orthodoxy, which are quite high-church, but the only growing denomination in the US is 'non-denominational', or the practice of having lots of tiny churches and congregations all competing with one another for adherents on what is basically the open market. This is extremely non-hierarchical and very different from the vision that Vermeule has; there is religious conservatism and there is religious conservatism, and these are not at all on the same pages.)

As the Democrats probably move right in response to their Senate disadvantage and cast a wider net, it seems extremely natural that they would attract people like this; the Democratic Party is already full of people who want to enforce a universal morality!

(Also note that at the very extreme end, this is already happening: consider the most prominent American neo-Nazi denouncing 'libertarian ideology' and voting for Joe Biden. Something very similar goes for David Duke. I don't think this is a horseshoe theory thing -- ultimately, everyone who doesn't want the government to shrink will probably have to be in the same party. My guess is that this sort of thing will gradually trickle from literal neo-Nazis to, eventually, higher-class populists like Vermeule; it's been observed many times that sociologically these people sure seem much more like Democratic than Republican voters.)

There's a reversal of means and ends here (that is, admittedly, common to American political attitudes; the most "respectable" version is probably the habit of treating specific trade policies as moral imperatives in and of themselves rather than recognizing that free trade, protectionism, longer or shorter supply chains, etc. etc. etc. favor or disfavor particular sectors of, and thus particular visions for, society). It does actually matter what one wants the state to be empowered to do, not just how much of it. A grand pro-state coalition would collapse the instant it tried to actually legislate anything, with the possible exception of the much stronger greenhouse gas regulations that are going to be no-brainers real soon to everyone who doesn't think the Tenth Amendment is a suicide pact.

I agree here.  Republicans now being completely dependent on Florida to win the presidency or the house mean a grand coalition on climate change within the decade. 

[Skill and Chance]

I think you're picking and choosing various aspects of anti-statist actions. I'm not saying we're in a pro-state or anti-state paradigm, but something more complex (at least right now). (My main point was that the anti-statist Reagan paradigm is over.)

Right. I don't really think it is. I don't think future historiography will see us as currently being in a meaningfully different political economy than the Reagan era. (I could see 2009-2010, with the passage of the ACA and a huge shift in public opinion away from things like passing the ACA, being seen as a turning point, but I doubt that it'll be seen as the turning point). I think, in the near future, public policy shifts at the federal level in an anti-statist direction are far likelier than the reverse.

Moreover, the reason a large shift hasn't happened yet is Alito defecting from the conservative block in Gundy, and his own reasoning was simply that that case being the one that hugely changes the federal government would be a bad look, because it would've involved a sex offender winning a lighter punishment under a technicality. The normal moderates, Roberts/Kavanaugh, were quite willing to do so even in a 'bad look' case.

First of all, I would not use SCOTUS as a proxy for society as a whole. It's well to the right of the general public. In terms of regulations, it's more of a what and where situation. The right is generally opposed to economic regulations. That's been true for a very long time. However, Trump and the right as a whole, have not been afraid of using government regulations to impose their own values under the larger culture war banner. That goes into my second point. DeSantis was part of a very small group of governors in terms of his response (or rather, lack thereof) to COVID. I think any characterization of those individuals as anti-statist is only incidental to their motivation as cultural warriors taking up the mantle as contrarians. Right-wing governors are not afraid of using the powers of the state to achieve their goals.

This whole paragraph has causation going in the opposite direction from my point. I know that the Supreme Court is well to the right of public opinion; my point is that public opinion tends to move to match the Supreme Court, and not the other way around. The classic example here is that Loving, the decision legalizing interracial marriage, was poisonously unpopular when handed down, but that the public eventually agreed with the Court on it; moreover, while opposition to civil rights decisions was often regional in nature, it pretty much always melted away.

(This is because advocacy organizations often end up tailoring their language to what will do best at the Supreme Court, resulting in accidental constant propaganda in favor of the correctness of Supreme Court logic, even if specific decisions might get demonized by name.)

Lastly, yes, DeSantis of course wanted to be seen as a 'culture warrior', but the positions required for culture warriors keep getting more and more anti-statist over time. You are suggesting that he accidentally came off as anti-statist in his desire to be seen as a culture warrior, but I think the latter directly flows from the former and that their separation borders on impossible.

To this day, I have a hard time figuring out what happened in 2020. Trump's personality and presence loomed so large that I think most of the issues (apart from COVID) were nearly irrelevant. I would largely agree with you that anti-statist forces are getting more extreme on an issue-by-issue basis, but they aren't necessarily increasing in number and on some issues, pro-statist forces are getting more extreme. Look at the abortion debate for an example of the latter (at least in terms of legislators).

The left is certainly more pro-spending than it has been in recent years, probably the most since the 1960s-1970s. I do not think that is a result of the rightward movement of the courts. Apart from Bush v. Gore and Citizens United, the courts were largely an afterthought for the left until the marriage equality debate worked its way there (the passage of Prop 8 changed everything). NFIB was fairly standalone considering the policy implications and the rare major Commerce Clause decision. I do think the past 6-7 years have affected how the left views the courts and the inability to use them to effect change.

I think NFIB was an extremely weird stand-alone decision whose logic -- both legal logic and extra-legal practical logic -- are both very unlikely to be repeated. Even in the context of 2012 it feels like a very strange throwback. I think one of the ways that courts have gradually grown more powerful over the course of the 2010s involves greater willingness to stop particular executive actions on the basis of technicalities, it being possible to find a technicality on which to stop decisions for a really large array of actions. Trump's citizenship question case set a precedent here that was actually pretty bad for...well...statists, and you're seeing an increase in cases (for example, having to do with Biden's border security policies) that don't directly cite it but maintain its logic, and which would've been unlikely to be heard several decades ago.

I think the left's turn in favor of greater spending is basically likely to come to nothing, and that under the influence of a right-wing judiciary and low-trust body politic it will end up moving right on regulatory/spending questions because there won't be room where it currently is to exist at all.

My understanding is that it is indeed true, at least statistically, that by the 1970s Douglas was so far "to the left", or so deep in his own original philosophy, that the difference between him and the other left-wing members was as large or larger than the difference between the left and the right. Martin-Quinn scores suggest that before Rehnquist joined the Court, the difference between Douglas and the next-most-left-wing Justice -- Brennan -- was indeed larger than the difference between Brennan and the rightmost Justice, Burger: in fact substantially so.

My point was that how far left Douglas was has no relevance to how far left Brennan was and it wouldn't make the latter a centrist. You implied that just because Gorsuch is so far to the right that Kavanaugh is a centrist or centre-right. Justice Gorsuch is probably one of the most idiosyncratic Justices we've seen in many years. Bostock is probably the most prominent opinion, but there are quite a few others (opinions, concurrences, and dissents).

Douglas did seem to move further to the left in the 1970s even as the Court shifted right. He outlasted his major allies on the Warren Court (Warren himself, Black, Goldberg, and Fortas). You also have to consider as the composition of a Court changes, so do the cases that are granted cert. That's what makes the current Court especially right-wing. Liberals alone no longer have the ability to join together and exercise the Rule of Four (let alone the times when Justice Kennedy would join the liberals).

No. Gorsuch and Kavanaugh are about equally right-wing as measured by things like Martin-Quinn scores (or at least they were back in 2019), but my point is that the kinds of cases they defect from the right on are incredibly different and basically non-overlapping, to the point that -- although I think it's shrunk a lot since the left has been unable to execute Rule of Four -- when Ginsburg was on the Court the difference between them was as large as between a left-wing Justice and a right-wing Justice. This is because the kinds of right-wing that they are are really different.

Douglas being where he was did not make Brennan a centrist. There is no reason that the biggest ideological fracture on the Court could not be between one member and all of the others. Suppose for a moment that two of the current liberals are replaced by conservatives, leaving just one liberal standing. Surely the gap between that judge and the most moderate conservative would be the biggest gap on the Court, right -- even without making that person a centrist? Similarly, the biggest gap being between Douglas and Brennan wouldn't make Brennan a centrist. This is pretty elementary stuff.

I agree about Gorsuch being almost as different from the other conservatives as he is from the liberals and I do think legal conservatives will win the argument against the administrative state decisively as that is where they are most united. 

However, I think you may be significantly overestimating how long the conservative supermajority SCOTUS will last.  Given recent senate results, the likelihood that Dems get a seat back by the end of the decade is reasonably high.  The Class I Dem Senate apocalypse has been delayed long enough that they can reasonably make up the seats elsewhere in the next Republican midterm.  As it stands, they are only down to 48 if they lose all of their remaining 2X Trump seats and gain nothing.  Then Collins, Tillis and the weaker R incumbent in Alaska all come up in 2026.  Control could reasonably be won back in just 2 years.  So unless there is a mass SCOTUS retirement for a Republican president in 2025, the long term is very up in the air. 

It's also unclear that Roberts even wants to retire when Republicans control the process, particularly if Trump is going to be president again.  However, if Roberts' seat is the one Dems pick up in the medium run, I doubt much would change on core scope of the federal government questions.  It would be huge for Native Americans and criminal defendants, though.