by John O. McGinnis · June 11, 2018
Judicial appointments have proved the most successful aspect of the Trump presidency. Neil Gorsuch has begun where Antonin Scalia left off—as a committed originalist and eloquent textualist. Twenty-one appellate justices have been confirmed, a record at this point in a modern President’s term. And, like Gorsuch, these appointees have been schooled in formalist methodologies of judging. Confident of and committed to their judicial philosophy, they will not shift leftward, as have many Republican appointees in the past. These judges are the fruit of institutions like the Federalist Society and of the work of scholars who have carefully formulated the ideas of originalism and textualism. The Left is enraged because the Trump judges will leave their mark for at least a generation. Thus a group, Demand Justice, has been formed to spend millions to assail the Trump appointees and tout progressive judges for the future.
But however much money they spend, judicial progressives face an existential difficulty: the Left has no philosophy of jurisprudence to compete with originalism. Yes, progressives embrace a familiar set of specific legal positions tied to their agenda. They believe that Citizens United—the case that gave corporations the same right to speak at election time as the media—is an abomination. They believe that the Constitution’s enumeration of powers does not prevent the federal government from regulating anything that it wants to regulate. They believe that progressive programs, be they Obamacare or antidiscrimination law, should never yield to claims of religious liberty, and that discrimination is generally fine, so long as it favors minorities—and majorities, too, as long as those are women.
In answering a question about the Supreme Court in a presidential debate with Trump, Hillary Clinton characteristically subordinated law to a grab bag of progressive policy objectives. “I feel that at this point in our country’s history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand up against Citizens United, we stand up for the rights of people in the workplace.” In contrast, Trump provided a general legal standard based on a principle: “Interpret the Constitution the way the Founders wanted it interpreted.” This is a rough but handy description of originalism.
Some alternative theories to originalism claim to respect the rule of law. The most prominent locates legality in following precedent. On this view, a court acts lawfully if its judgments flow from the holdings and reasoning of prior cases. And at the beginning of the conservative revival in law, progressives argued that they, not conservatives, remained faithful advocates of law, precisely because they wanted to adhere to precedents like Roe v. Wade and the Warren Court’s criminal-procedure revolution.
But a jurisprudence of precedent no longer works for progressives, because they want so many precedents overturned. Citizen United is the most discussed, but the list is long, from Shelby County, which struck down some of the preclearance provisions of the Voting Rights Act, to United States v. Morrison, which invalidated portions of the Violence against Women Act on federalism grounds, to the numerous cases in which the Court has upheld the death penalty. More generally, progressives radicalized by Trump’s election will not be satisfied with a jurisprudence that upholds the status quo.
At the turn of the last century, progressives did have a consistent jurisprudence, holding that judges should defer to the legislature, because the legislature is the more democratic branch. But a return to deference today would not serve progressive goals, because progressivism, particularly on issues of race and gender, stakes out positions that often conflict with what progressives regard as unenlightened majority thinking.
The best previous academic alternatives to originalism do not meet current progressive needs, either. John Hart Ely, for instance, argued that the role of the Supreme Court is to reinforce democracy by eliminating road blocks and stereotypes that get in the way of deliberation. But while his theory justified much of the Warren Court’s jurisprudence, it criticized Roe v. Wade—the case most cherished by left-liberals today— because that decision undermined, rather than reinforced, democracy. And nothing today for progressives is more sacrosanct than the constitutional right to abortion.
Bruce Ackerman argued that since the Constitution is difficult to amend, the Supreme Court should respect legislation as a constitutional revision if it is the product of intense national debate and supported by substantial majorities at successive elections. But progressives have not won enough elections since the 1960s to apply this theory.
The one exception to the Left’s constitutional stagnation is the band of liberals, led by Jack Balkin, who embrace originalism, arguing that it can be friendly to progressive goals. This is a welcome development for constitutional theory in the academy, because it puts the debate about the Constitution where it should be—on historical facts about its meaning, rather than on contemporary politics. Nevertheless, the liberal originalism boomlet seems unlikely to have much effect outside the academy. First, the Left has been demonizing originalism for so long that it can hardly now publicly embrace it. Indeed, the whole argument of the Left over the last century is that the law of the Founding was outdated, and today many leftists would add that it is also discredited, being the product of rich white males. Second, with due respect to these theorists, it’s unlikely that a fair reading of an essentially Whig Constitution can be contorted to reflect the progressive agenda today.
It might seem surprising that progressives can’t formulate a coherent progressive jurisprudence, given that hundreds of left-leaning constitutional law professors work at our law schools. But, paradoxically, the Left’s dominance of the legal academy makes it harder for viable new theories to emerge, because so few conservatives are present to subject these theories to constructive criticism. Institutions outside the legal academy are not providing this kind of challenge, either. In particular, the Left has been badly served by the American Constitution Society, a group formed in reaction to the Federalist Society. The Federalist Society always invites critics on its panels; the ACS more rarely. Indeed, it spends a lot of time at its conferences on the nuts and bolts of organizing, rather than on refining ideas. As a result, progressive theories don’t get the improvement that comes from letting your opponents vet them before taking them on the road.
No victories are permanent in politics or jurisprudence. New left-leaning thinking about constitutionalism will at some point rise to a level worthy of being called a kind of jurisprudence, but for now, originalism has the intellectual power and public resonance. You can’t beat something with nothing.
John O. McGinnis is a contributing editor of City Journal and the George C. Dix Professor in Constitutional Law at Northwestern University School of Law.