Commenting on the Supreme Court’s controversial rulings on the extent to which the Constitution applied in the territories the United States acquired in the wake of the Spanish-American War, Finley Peter Dunne famously had his character Mr. Dooley say that “no matter whether th’ constitution follows th’ flag or not, th’ supreme coort follows th’ iliction returns.” Ever since, the fictional Dooley has been a go-to source for the view that the Supreme Court does not stand wholly outside of politics. Presidents and senators choose judges and justices, and even without a change in personnel, a change in public attitudes can affect jurists’ understanding of the law. Historians still debate whether FDR’s Court-packing plan caused the “switch in time that saved nine,” but even without such direct threats to judicial independence, Mr. Dooley has been vindicated repeatedly.
Disappointed Conservatives
Yet two Supreme Court decisions last week appeared to defy Mr. Dooley’s insight. First, the Court held 6-3 that the prohibition on sex discrimination in employment in Title VII of the 1964 Civil Rights Act covers discrimination based on sexual orientation and transgender identity. Then, the Court ruled 5-4 that the Trump administration’s rescission of Deferred Action for Childhood Arrivals (DACA) was procedurally flawed and thus could not, absent further agency action, endanger the roughly 700,000 Dreamers who have relied on it. The DACA decision was written by Chief Justice John Roberts, an appointee of former President George W. Bush. Although neither of President Trump’s appointees joined it, one of them—Justice Neil Gorsuch—wrote the majority opinion in Bostock v. Clayton County, the Title VII case.
To the extent that politics influences the Supreme Court chiefly through appointments, the DACA case was a disappointment to Republicans who favor Trump’s get-tough approach to undocumented immigrants. However, at least since Roberts voted to uphold the Affordable Care Act (or “Obamacare”) against a constitutional challenge in 2012 and a statutory one in 2015, movement conservatives have come to understand that they cannot always count on him to vote their way. Gorsuch’s opinion in Bostock, by contrast, was a major disappointment to a conservative movement that has, since the Reagan administration, sought to move the law to the right, especially on social issues, through judicial appointments, especially to the Supreme Court.
Missouri’s junior Senator Josh Hawley summed up conservatives’ disappointment with the Bostock ruling—and by implication with Justice Gorsuch—in a speech the day after it was handed down. Much of what Senator Hawley said was hyperbole or worse. He began by decrying the ruling as “legislation,” echoing the dissents of Justices Samuel Alito and Brett Kavanaugh, and deploying a familiar tactic used whenever a critic disagrees with how a court has interpreted the law. More improbably, Hawley went on to say that religious conservatives disappointed by the Bostock opinion had hitherto supported the conservative legal movement chiefly to protect their own right to worship and practice their religions as they chose.
That’s wildly inaccurate. Religious conservatives have engaged with judicial politics since the 1970s chiefly to facilitate the regulation of abortion and to permit restrictions on the freedom of LGBT Americans. No one ever proposed requiring religious conservatives or anyone else to have an abortion or to be gay or transgender. Thus, their liberty in any real sense was never in danger. The religious liberty that Hawley believes to be under threat is the liberty to force others to abide by their religious strictures and the liberty to decline to act civilly to those who lead different lives—and the latter is pretty clearly going to be protected robustly by a Court that interprets the federal Religious Freedom Restoration Act very expansively.
Meanwhile, sandwiched between Senator Hawley’s denunciation of Bostock as legislation and his War-on-Christmas-level delusions about a threat to religious freedom was a telling observation about the nature of the conservative legal “project” of trying to pack the courts with self-styled originalists in constitutional interpretation and textualists in statutory interpretation. Bostock, he said,
represents the end of the conservative legal movement [because] if you can invoke textualism and originalism in order to reach such a decision—an outcome that fundamentally changes the scope and meaning and application of statutory law—then textualism and originalism and all of those phrases don’t mean much at all. And if those are the things that we’ve been fighting for . . . then I have to say it turns out we haven’t been fighting for very much. Or maybe we’ve been fighting for quite a lot, but it’s been exactly the opposite of what we thought we were fighting for.
What should we make of that?
An Unintentional Admission?
On its face, Senator Hawley’s complaint acknowledges—perhaps unintentionally—a point that liberal scholars and judges have been making for years. Professor Neil Buchanan and I argue in a forthcoming article in the Cornell Law Review that originalism and textualism as they have evolved in recent decades are so open-ended that, in the sorts of contested cases that reach the Supreme Court, they can be used to support virtually any result that a justice favors on other, typically conservative ideological, grounds. Our view stands in marked contrast to the view expressed by defenders of originalism and textualism. These interpretive approaches, their champions typically say, are ideologically neutral and thus will sometimes lead to liberal results as well as conservative ones. Such conventional defenders of textualism might even point to Justice Gorsuch’s opinion in Bostock—which uses textualism to defend a liberal result—to vindicate their claim of neutrality. For reasons I explained on my blog last week, they would be wrong in that claim of vindication, but at least the claim would have a superficial plausibility.
By contrast with the conventional defenders of originalism and textualism, Senator Hawley was not making a claim to ideological neutrality. Instead, by expressly linking them to religious conservatism, Hawley admitted—indeed boldly proclaimed—that the whole point of originalism and textualism was to provide a mechanism for obtaining results that religious conservatives favor on ideological grounds.
Whither Disappointed Conservatives?
What follows from Senator Hawley’s analysis for those on the right who agree with it?
One possibility, promoted recently by Harvard Law Professor Adrian Vermeule, is to abandon originalism and textualism in favor of a frankly “illiberal legalism” that, consistent with Vermeule’s admiration of authoritarian regimes, is itself authoritarian insofar as it treats Americans not as citizens but as “subjects” who “will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.”
Yet while Vermeule’s theocratic authoritarianism may reflect the true views of Hawley and a substantial portion of the conservative base, two substantial obstacles stand in its way. First, as Vermeule acknowledges, virtually the entire conservative legal establishment has for a couple of generations treated originalism and textualism as articles of faith. Donald Trump can tweet one thing on Monday and the exact opposite on Tuesday without losing support from his most ardent supporters, but well-socialized legal elites are considerably more constrained by whole lifetimes of pronouncements.
Second and more pragmatically, the conservative legal movement, like the Republican Party, is an awkward coalition of social conservatives and economic libertarians who have libertarian impulses on other issues as well. Vermeule’s open hostility to libertarianism would fracture the coalition, leaving social conservatives isolated and ultimately without sufficient power to turn their position into legal results.
Double Down or Disengage
Accordingly, I do not expect conservatives to abandon originalism and textualism. Instead, the most likely course would be to double down. With Senator Hawley and other conservatives now denouncing Gorsuch as a turncoat along with Roberts, the path forward would be to continue to work hard to pack the courts with reliable conservatives who will use originalism and textualism as they were intended—that is to mask rulings reached on ideologically conservative grounds. So long as they control the White House and the Senate, conservative Republicans may think the odds favor them. After all, three of the five Republican appointees voted against the LGBT plaintiffs in Bostock, and four of the five Republicans voted with the administration in the DACA case. And conservatives could still prevail in high-profile cases this Term involving abortion, religious exceptions to antidiscrimination law, and Trump’s tax returns.
However, if conservatives hope to win every case, then originalism and textualism—and for that matter, every interpretive methodology—will continually disappoint them. Supreme Court justices have life tenure and conceptualize themselves as standing outside partisan politics. The list of Republican appointees who disappointed their one-time conservative supporters is long. Before John Roberts and Neil Gorsuch sided with LGBT rights, so did Sandra Day O’Connor, Anthony Kennedy, and David Souter—and all three of them also voted to retain abortion rights, following in the footsteps of Nixon appointees Lewis Powell and Harry Blackmun. Going back further still, we do well to recall that the most liberal Supreme Court in history was led by Republican appointees Earl Warren and William Brennan.
Because I am not a conservative, I hope but cannot reasonably expect that conservatives will give up on their project of filling the federal courts with true believers. More realistically, perhaps we liberals can ask conservatives to rethink their support for Trump—a man who, in his private and public life, shows no attachment to conservative or any other moral principles. To this point, many conservatives who find Trump repugnant have nonetheless reluctantly supported him as part of a deal with the devil: in exchange they receive a transformed judiciary. If they come to see that the benefits of a Republican-stacked Supreme Court are slight, perhaps they will change their calculus, allowing Trump’s awfulness across every other dimension of governance to outweigh the modest benefit of controlling the courts.
That, at any rate, is my hope. Whether it will be vindicated in November depends on a question Mr. Dooley did not answer. For while it is true that the Supreme Court follows the election returns, it is also true that the election returns can follow the Supreme Court’s rulings. The unresolved question in 2020 is in which direction.