Legal Conservatives Now Want to Move Beyond Originalism

[politicallefty]

I will stick with originalism, and so long as Robert Bork's The Tempting of America remains on the bookshelves, the philosophy of originalism will remain influential with a lot of people, not to mention the many Supreme Court decisions that were based on originalist reasoning.

There do seem to be some different forms of originalism. While I do have strong textualist leanings, I would not consider myself an originalist. That said, there does seem to be a fairly diverse set of views based on originalist reasoning. For example, I think if they were on the same Court, Justices Black and Scalia would have diverged on many cases.

[politicallefty]

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!

I'm not sure where you're getting that from. Even if the Democratic Party was moving to the middle now (and there is no evidence of that), there is certainly no evidence their judicial nominees would follow. I think most Presidents think the other side isn't looking when they nominate judges below the Supreme Court (something that has largely been the case). Both sides have and will continue to push nominees as far to their side as possible (apart from compromise nominees).

It's also funny that you mention universal morality on the part of the Democratic Party when your side basically requires every nominee to be pre-approved by the Federalist Society.

[politicallefty]

I find most of these discussions of originalism verus textualism versus a living Constitution versus an in loco parentis Constitution that this common good Conservatism guy is hawking typically sterile and more obfuscating than illuminating in general. That said, I am prudential enough to very much hew to the notion that the Constitution should not be so interpreted as to become a suicide pact.

I think what you say is reasonable. I consider myself to be a pretty strong textualist, but that doesn't always give you the complete picture or answer. The outer bounds of any right under the Constitution should absolutely not be a suicide pact. While the rights under the First Amendment are vast, they should never be construed to place oneself above the law. On the other hand, when you consider the Fourth Amendment, there is no textualist or originalist basis for the Exclusionary Rule. Rights under the Constitution must have meaning more than just being words on paper. In the context of the Fourth Amendment, the protections afforded to the people would be rendered meaningless without the Exclusionary Rule.

I don't think this would require any shift on the part of judges or judicial nominees, actually. The Republican Party's coalition has changed a lot since 1982 but the Federalist Society has in fact remained remarkably the same in its vision for the American legal system.

'Universal morality' here just means 'set of moral rules which apply to everybody'. The current Democratic zeitgeist seems a lot more into this than Trumpism, even though I can hear the retort coming that the religious right is also very interested in universal morality and this would be correct.

I just don't see any evidence as to what you are suggesting. There is far more diversity of thought on the left than the right in terms of judicial philosophy. It is true that the judges on the left are now closer to RBG rather than Thurgood Marshall or Arthur Goldberg, but that shift happened decades ago. Justice Sotomayor is probably the only Justice remaining that resembles the old left of the Warren Court. The right-wing really isn't much changed since the rise of the Federalist Society. When you look at the 5th Circuit, do you really see much daylight between Edith Jones and Andy Oldham?

[politicallefty]

I think a big mistake being made here is the assumption that it is impossible for their to be more than one "pro-state" political party at a time. We are used to such because that is the dynamic of the last several decades, but there have been times when their was a consensus about the role of government in society and it was merely a case of whose team one to determine who benefitted from the largess.

That depends on what the meaning of "pro-state" is. While the left is traditionally "pro-state" in the economic sphere, that doesn't mean the right hasn't had the mantle of "pro-state" in other aspects (the security state and the "Moral Majority" come to mind). That doesn't mean there isn't a bleed-over on some of those issues, but I do think the point is fairly clear.

In terms of the role of government, there most certainly has been a major shift in recent years. I think your point there is rather cynical though. When there was a general consensus, we agreed on the problems, but we differed as to the best way to solve those problems. The difference now is that the two sides do not debate solutions to problems, but rather what the problems are or whether or not they exist (healthcare seems to be a major one there). There should be no false equivalencies though.

[politicallefty]

Has there? It seems like there was a huge shift to anti-state ideologies associated with the financial crisis (although it lasted broadly from 2007-2014), and since then we've been in a strange holding period as politics has become more focused on personalities (and usually very geriatric personalities, for that matter). Since COVID it seems like a majority of the population has de facto embraced a position like 'the government does not have a role to play in fighting pandemics' -- or at least politicians associated with this message have won landslides -- which would've been an unimaginable take in polite discourse 20 years ago. But this hasn't really translated to national results like the Tea Party wave, since politics remains focused on 'Trumpy' issues.

I do think there has been a significant paradigm shift. I think there are enduring paradigms that generally exist until toppled. Both parties acknowledge and act accordingly under them. From 1932-1980, we had the New Deal paradigm. (The last gasp of conservativism at the federal level for decades was the the Republican Congress elected in 1946, which was subsequently obliterated in 1948.) Even Republicans such as Eisenhower and Nixon were forced to play the game on that side of the field. Look at Nixon's healthcare proposal compared to what even some Democrats put out decades later. On the other side, Reagan massively changed the political landscape. Clinton came to power with strong majorities in both Houses of Congress that were subsequently obliterated in 1994, a reinforcement of the Reagan Revolution. The remainder of the Clinton Presidency was largely fought on the other side (welfare reform being the most striking example), a reversal of the New Deal paradigm.

The Reagan Revolution is basically dead now though. Unlike other paradigm shifts, I think it went out with a whimper rather than a bang. I think Bush's "compassionate conservativism" partially eroded it from within. The current paradigm shift was finalized by the pandemic. The Democratic Party is no longer playing on the Reagan paradigm field. BBB was very close to passing and it would have been the biggest legislative package since the Great Society. The anti-statist Reagan paradigm is over.

I think the difference between Gorsuch and Kavanaugh is about as large as the difference between the left and right broadly; this is kind of obvious if you read their opinions or public statements, but can also be demonstrated statistically.

There is nothing obvious about that. That's like saying Justice Brennan was a centrist because Douglas was to his left.

[politicallefty]

I don't think the anti-statist paradigm is over; I think the long-term effect of COVID has been to strengthen it. The Court as currently composed is likely to bring down a decision similar to Gundy which would massively strengthen a non-delegation doctrine; Trump was the first President in a long time to fight growing regulation semi-successfully (in spite of his own disinterest in doing so, purely as a result of intellectual shifts on the right), and the most successful up-and-coming politicians (of whom DeSantis is the most obvious) are those who made their names fighting actions taken against COVID; "the government's role in protecting public health is broadly illegitimate" is a hugely radical position that would never have occurred to Reagan or GWB, and even 10 years ago was quite fringe.

BBB could've passed; more generally, the polls which forecast a Democratic landslide in 2020 were indeed forecasting a new paradigm. But that just didn't actually happen, and inasmuch as the paradigm feels different, it is in that anti-statist forces keep getting more extreme really quickly.

(I think there was a real paradigm shift between 2009-2010; after this you had politicians explicitly campaigning on cutting their own districts' subsidies, unheard of in earlier years, and you saw an enormous decline in the success of "good government" appeals on the right as a large plurality, or even a majority, started seeing this as not necessarily desirable. This is actually a pretty different paradigm from Reaganism in many ways -- it's tough to fight for school prayer when you think schools should have less say in what children think, or to fight for mandatory seat-belts when you think that the government should not ban things for being dangerous.)

(And I think this paradigm bleeds over onto the left, too: while it is true that the institutional Democratic Party has gotten more pro-spending over the past 15 years -- though this feels substantially like a reaction to a more right-wing court system which is ever less likely to let large reforms happen, NFIB being probably the last case of its type -- most of the grassroots movements seem to be about things like curtailing police powers, weakening drug laws, or weakening social stigma -- itself a form of meta-governance -- against particular minorities, and to source some of its fundamental opinions from the libertarian right.)

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.)

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.

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.

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).

[politicallefty]

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.

As I said before, I think you can judge a political era based on how both sides play the game. The first two years of Clinton's term were largely an extension of the pre-Reagan era. Upon losing Congress in 1994, Clinton was very much playing the game on their terms. Clinton's 1996 SOTU and welfare reform were major concessions to that point. That's similar to Nixon and the New Deal Era still dictating the terms. I think whatever we have now is closer to some form of trench warfare in terms of the bigger issues.

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.

I don't agree with your first point at all. Loving was unique for a multitude of reasons. Most states never had or no longer had active anti-miscegenation statutes in 1967 and it was also a 9-0 decision uniting all ideologies on the Court during the Civil Rights Era. A decision like that is generally in line with MLK's quote regarding the arc of the moral universe. The Lochner era is the reason the Child Labor Amendment is still pending before the states. Furman was met with a rather quick response by the states and Roe speaks for itself. Congress also attempted to overturn Miranda through a statute. If you think we're going to see widespread acceptance of Dobbs, I'm willing to take that bet. You also should not confuse patience with inaction or complacency.

With respect to DeSantis, no, not accidentally anti-statist. He knows the game he is playing. Part of it is to be intentionally outrageous to garner attention and support, a necessary trait for culture warriors. I do not believe for a moment that he is anti-statist by nature. Florida isn't exactly some libertarian paradise. There are countless examples displaying his use of the powers of government to achieve policy ends. A small government conservative, he is not.

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.

I don't think you're wrong with respect to NFIB. The variable you mentioned without actually mentioning by name is Chief Justice Roberts. His colleagues to his right had very little issue with Trump's executive actions. Even then, Roberts was still far more deferential to Trump's executive actions compared to Biden's. That does not suggest a coherent legal thought. That suggests rank partisanship.

You seem to suggest that the left wants spending for its own sake. I think some of the major priorities of the left were contained within the initial BBB proposal (expansion of healthcare, paid leave, free college, etc). The left certainly isn't going to roll over and accept giving up on using government in the economic realm. Legislation may have to adapt, but that's all, unless you're suggesting you think the Court will attempt more extreme rulings. For example, do you think Americans as a whole would just roll over and accept it if the Supreme Court struck down Social Security, Medicare, and Medicaid?

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 totally agree with your first paragraph. We certainly agree that a reduced liberal minority has affected the Rule of Four and the overall caseload (and hence the direction of the Court). On the other hand though, consider the kinds of cases where Scalia and/or Thomas would join with the left for a bare majority. They were mostly criminal law and procedural cases, but the effects were certainly profound.

I think we might have lost track of each other with respect to your second paragraph. I think my point on that was in response to you mentioning Kavanaugh being a moderate and also with respect to ideological diversity. Kavanaugh is not a moderate. The ideological diversity of the Court is nothing compared to what we had during the Warren or Burger Courts. In some ways, Gorsuch almost seems like a much more conservative version of Justice Black. (Keep in mind that Justice Black was a First Amendment absolutist, yet was in dissent in Griswold.) A strict judicial philosophy appears more pronounced when one defies their typical ideological leanings.