The Crisis of the Conservative Legal Movement

According to 2016 presidential election exit polling, the Supreme Court was the single most predictive and determinative issue. Amidst the backdrop of a Court vacancy left by a dearly departed icon, Justice Antonin Scalia, a sizable plurality of voters cast their ballots based on the presidential candidates’ avowed preferences for Supreme Court nominations. These voters, horrified by decades-long leftist jurisprudential crusades against religious liberty and the American way of life, overwhelmingly broke for Donald Trump.

So, what exactly were these droves of conservatives, independents and moderates voting for? The most common answer, professed by Conservatism, Inc., and imbibed by an entire impressionable generation, is that these voters merely sought jurists committed to a certain methodological approach to constitutional interpretation. These voters, the post-Ronald Reagan conservative institutionalists tell us, merely desire federal judges who pledge fealty to certain neutral interpretive norms rooted in the Constitution’s original public meaning.

Perhaps there really are millions of voters whose primary voting interest is ensuring public officials honestly interpret the Constitution. That is an intrinsically beneficial goal. Ours is a moral Constitution intrinsically oriented toward establishing justice, promoting the common good and securing the blessings of liberty while defending its authority and grandeur against those who would undermine it is worthwhile—all the more so amidst our current doldrums of facing a pseudo-Marxist insurrection.

But there is a competing, and more compelling, theory. As noble as our constitutional structure is and as well-versed as the Founding Fathers were in political theory, it is unlikely that so many voters pull the lever for Republican candidates due primarily to the desirability of a certain governmental form or a text’s interpretive methodology. Rather, these voters primarily desire not procedural but substantive ends: protect unborn lives, promote the inherent good of religion, secure gun ownership and self-defense and, above all else, preserve the integrity of the American lifestyle against a fiery mob of woke civilizational arsonists who seek to burn the entire edifice to the ground.

This alternative theory posits that conservatives and independents primarily motivated at the ballot box by the Supreme Court are more interested in substantive outcomes than by procedural methodology. The current crisis facing the conservative legal movement is what happens when a purportedly well-oiled machine geared to churn out methodologically sound judicial automatons fails to produce sound results.

The recent Supreme Court term that just ended was perhaps the most disappointing, from a conservative perspective, in decades. On high-profile case after high-profile case, conservatives—despite the presence of two Trump-nominated justices on the Court—were let down. Some farcical outcomes, such as invalidating a pro-life Louisiana law and precluding Trump from unilaterally rescinding his predecessor’s unconstitutional executive amnesty for “Dreamers,” were at the behest of the feckless chief justice, the George W. Bush-nominated John Roberts. But in the bread-and-butter culture war case of Bostock v. Clayton County, it was Trump-nominated Justice Neil Gorsuch who misinterpreted Title VII to codify new gay and transgender employment rights from the bench. Similarly, it was Gorsuch who informed us that roughly half of the state of Oklahoma is actually still Indian country.

As the ambitious and transformative Senator Josh Hawley, R-Mo., said on the Senate floor shortly after the Bostock ruling, “if textualism and originalism give you this decision, 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.” What, in essence, is the point of all of this if we are unduly hindered from achieving the very results for which we are fighting? It appears the country is not heading in a correct substantive direction despite feigning “fealty” to “correct” methodologies.

Hawley has followed up by announcing an express Supreme Court nomination litmus test for Roe v. Wade, the landmark ruling establishing our blood-soaked abortion status quo. That is a bold, correct and necessary first step. But if Trump and the Republican Party want to ensure social and religious conservative voting turnout this November, more is needed.

We need nominees who are not merely of the belief that Roe is a constitutional abomination; we need nominees who, through word and deed, have bled for the substantive right to life. We need nominees who will expressly abnegate strict fidelity to norms of stare decisis, or precedent, which has all-too-often provided a convenient roadmap for weak-kneed Republican-nominated justices.

We need, in short, a substantive vision for the good life in America. As Aristotle put it in his “Politics,” “a state exists for the sake of a good life, and not for the sake of life only.” Would that our constitutional order and judicial nominations apparatus alike reflect that in earnest.


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About Josh Hammer

Josh Hammer is senior editor-at-large of Newsweek. A popular conservative commentator, he is a research fellow with the Edmund Burke Foundation and a syndicated columnist through Creators. A frequent pundit and essayist on political, legal, and cultural issues, Hammer is a constitutional attorney by training. He is a former John Marshall Fellow with the Claremont Institute and a campus speaker through Intercollegiate Studies Institute, Young America’s Foundation, and the Federalist Society.

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