David Rivkin and Andrew Grossman recently summed up their case for an existing conservative Supreme Court majority with honor and praise going to the “conservative legal movement that produced the court’s majority.” Unfortunately, their arguments may deceive readers about what has actually been achieved in the high court and why it will prove wanting. Despite its fundamental flaws, the essay should be taken with utmost seriousness, for Rivkin, the senior writer, has been for decades one of the most insightful observers of the court.
Politically, however, Rivkin and Grossman (as well as conservative jurists) are at a disadvantage if they attempt to fight contemporary judicial wars with mid-20th century legal weapons. I speak here of notions such as a “jurisprudence of restraint” and opposition to “judicial activism.”
The opportunistic and attacking enemy will seize these weapons and turn them against their wielders, who will be denounced as elitists, anti-democratic, and, of course, racists. Rivkin makes the pitch for the late Justice Antonin Scalia’s “originalism” and “textualism” to turn back the leftist critical legal theorists (“crits”) emerging from the law schools as well as their pioneering predecessors. (The critical race theory now assailing school districts is a popularized identity politics version of the same phenomenon.) But the law on which these Scalia doctrines rest is in motion.
Respect for precedents? Does that include Roe v. Wade? The “discrete and insular minority” preferences of footnote 4 of Carolene Products? If the law schools with their narrow approach—are torts feudal privileges?—don’t get you, the entire academic culture will. None of the devices Rivkin praises are of much use in a culture that sees law as simply an expression of power and judging as an exercise of power. Fifty years ago, for example, no one seriously questioned whether someone is a boy or girl, a man or woman. But we are in a different world now.
Second, Rivkin’s approach is based on an irrational rejection of the “common good,” as though it were a synonym for socialism. Yet how would he, with his “jurisprudence of restraint,” defy laws passed by a socialist Congress? In particular, he indicts an essay, “A Better Originalism,” coauthored by Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker for the American Mind. While I am in enthusiastic agreement with much of their argument, I would advance “An Even Better Originalism,” which specifies the Declaration of Independence as the source of morality in constitutional law. (Thus I question their terminology of an “Anglo-American legal order,” preferring the Declaration instead.)
Arkes, et. al., write, “The travesty of Bostock,” whose opinion by Trump appointee Neil Gorsuch concludes that sex discrimination in the 1964 Civil Rights Act includes discrimination against homosexuals,
revealed the pitfalls of a jurisprudence that solely relies on proceduralist bromides . . .
Worse, Originalism for many has become a jurisprudence that prides itself on its careful avoidance of addressing the moral substance of even the gravest cases. It has failed to transcend hollow positivism and now operates squarely within that flawed framework . . .
Contrary to Justice Holmes [despising his jurisprudence should be the quick test for conservative judicial prospects], moral truth and jurisprudence are inextricably linked, and so the act of judging necessarily involves treating law as a teacher of our fellow citizens. To teach in a modest way, judges should embrace their role as a co-equal branch to articulate the first principles of moral and legal judgment . . . We ask them to do their duty: to test the underlying moral justification for why a law exists and explain why republican government requires each actor in the constitutional order to do the same . . .
Rivkin’s revulsion at these criticisms rationalizes the blind defense of legal positivism, which holds that all law and therefore justice itself merely arises out of the constitutional arrangements of each nation. Thus, appeals to the “common good” are at one with leftist “high-minded rhetoric [that] conceals an assertion of unbridled power.” To avoid such left- or right-wing Machiavellianism, Rivkin’s skeptical lawyer retreats to an originalism protecting individual rights and democratic processes.
For a judge to prize his own “value judgments” might even produce “tragedy.” Somehow, Rivkin believes, “the blessings of liberty” will arise from a government that “pits faction against faction”—like an invisible hand. Is that the essence of constitutional government? That’s not what it says in my copy of The Federalist¸ especially numbers 11, 14, 43, 49, 57, 63, 71, and 78, not to mention 10 and 51.
It’s not that Rivkin deliberately promotes nihilism; “moral truth” he says is “cultivated by families, communities and civil society,” not government programs or court decisions. Freedom to act morally can exist only in the spaces a court upholds against total government. But this neo-Burkean-Tocquevillean view just postpones the need to confront the question of what “moral truth” is and how to act on it.
Such truth is above all not a “value judgment,” that is, a mere subjective taste, but is an objective reality as clear as any self-evident truth identified in the founding document of America, the Declaration of Independence. If legal positivism is true, then all is lost, as all forms of government become equally mere expressions of “value judgments” or the “enthusiasms of the elite” that Rivkin rightly mocks. It would follow from there that all forms of justice, a synonym of “common good,” are similarly slippery. At that point, stuck with such an absurd conclusion, we must acknowledge that everyone is a crit, retreat to our religious corners, or perhaps wish for more lighthouses.
So perhaps it is not so odd that Rivkin takes Adrian Vermeule as seriously as he does, spending almost four paragraphs on his “eccentric” thought. Ultimately, the question of moral truth must transcend the turbulence—in revelation or in natural law or both. I dismiss Vermuele as an authority by noting he coauthored a book with his liberal Harvard Law School colleague Cass Sunstein, which included a chapter called “The New Coke” (Snobbery alert: you’re not qualified to read it unless you can properly pronounce “Coke.”) In it, Vermuele and Sunstein attack Justice Clarence Thomas for his opinions opposing the administrative state. Vermeule defends the administrative state, the major enemy of freedom today, and dismisses Philip Hamburger’s invaluable work.
But let me end on a practical note. The alleged triumph of conservative originalism owes much to Antonin Scalia, but I think even more to Clarence Thomas in his bold concurrences and dissents, especially those that rely on natural rights and the Declaration of Independence, the document that enshrines the American notion of the common good, natural law, and individual rights. His determination to break out of the boxes confining conservative jurisprudence has given us the openings Rivkin and Grossman prematurely celebrate. Justice Thomas would not gloat. Not yet.