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Common Good Originalism: Our Tradition and Our Path Forward

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Common Good Originalism: Our Tradition and Our Path Forward COMMON GOOD ORIGINALISM: OUR TRADITION AND OUR PATH FORWARD JOSH HAMMER* Herewith, a paradox. On the one hand, legal conservatism, original- ism, and textualism have never been more ascendant and better-posi- tioned within the legal academy and mainstream political discourse. But on the other hand, the state of conservative jurisprudence in America has reached a crisis point.1 The crisis point did not arrive overnight. The modern Republican Party’s judicial nominations apparatus has often failed conservatives and constitutionalists, dating all the way back to President Dwight D. Eisenhower’s fateful twin Supreme Court nominations of Justice Wil- liam Brennan and Chief Justice Earl Warren. “I made two mistakes, and both of them are sitting on the Supreme Court,” President Eisen- hower famously said.2 Justice Harry Blackmun, author of Roe v. Wade,3 * Newsweek opinion editor and research fellow with the Edmund Burke Foundation. He previously worked at Kirkland & Ellis LLP, clerked for Judge James C. Ho of the U.S. Court of Appeals for the Fifth Circuit, and served as a John Marshall Fellow with the Claremont Institute. He holds a B.S. from Duke University and a J.D. from the Uni- versity of Chicago Law School. This essay was written with the support of the Edmund Burke Foundation, for which he is very grateful. 1. See, e.g., Josh Hammer, The Crisis of the Conservative Legal Movement, AM. GREAT- NESS (July 30, 2020), https://amgreatness.com/2020/07/30/the-crisis-of-the-conservative- legal-movement/ [https://perma.cc/J9H8-UKJZ]; see also Josh Hammer, Undoing the Court’s Supreme Transgression, AM. MIND (June 19, 2020), https://american- mind.org/memo/undoing-the-courts-supreme-transgression/ [https://perma.cc/2ULQ- WM4A]. 2. Raymond J. de Souza, Supremacy of the Court, FIRST THINGS (Dec. 4, 2020), https://www.firstthings.com/web-exclusives/2020/12/supremacy-of-the-court [https://perma.cc/65E6-PCXM]. 3. 410 U.S. 113 (1973). 918 Harvard Journal of Law & Public Policy [Vol. 4 the twentieth century’s moral and jurisprudential successor4 to the Dred Scott5 case, was a President Richard Nixon nominee. Justice John Paul Stevens, liberal lion of the Court for three and a half decades, was nominated by President Gerald Ford. President Ronald Reagan nom- inated the moderate Justice Sandra Day O’Connor and the idiosyn- cratic Justice Anthony Kennedy, the latter of whom would encapsu- late both a gnostic relativism in metaphysics6 and a jurisprudential commitment to individual autonomy maximalism7 over the course of his Court tenure. President George H.W. Bush greatly erred in nomi- nating Justice David Souter—he of the eponymous “No more Souters” fame—to the Supreme Court in lieu of the stalwart Edith H. Jones. President George W. Bush was similarly mistaken in selecting John G. Roberts over J. Michael Luttig for the position of Chief Justice of the Supreme Court. Suffice it to say that this is hardly a track record of sustained excellence. According to prevailing mythology, everything changed when Donald Trump became President. At long last, conservatives and constitutionalists had a White House that was unambiguously, pas- sionately committed to stacking the federal judiciary with princi- pled originalists and textualists. This purported well-oiled ma- chine, aided by outside actors with putative expertise in separating the would-be Souters from the true believers, was finally to deliver conservatives to the judicial promised land. 4. See, e.g., Robert P. George, A Republic . if You Can Keep It, FIRST THINGS (Jan. 22, 2016), https://www.firstthings.com/blogs/firstthoughts/2016/01/a-republic-if-you-can- keep-it [https://perma.cc/9ST2-DHQR]; Josh Hammer, Abortion Is a Grave Injustice. We Must Treat Roe Just Like Dred Scott., DAILY WIRE (Jan. 25, 2020), https://www.dai- lywire.com/news/hammer-abortion-is-a-grave-injustice-we-must-treat-roe-just-like- dred-scott [https://perma.cc/929T-3NAY]. See generally JUSTIN DYER, SLAVERY, ABOR- TION, AND THE POLITICS OF CONSTITUTIONAL MEANING (2013). 5. 60 U.S. (19 How.) 393 (1857). 6. See, e.g., William Haun, The “Mystery of Life” Makes Law a Mystery, PUB. DISCOURSE (July 26, 2013), https://www.thepublicdiscourse.com/2013/07/10091/ [https://perma.cc/N6C7-GZHF]. 7. See, e.g., Obergefell v. Hodges, 576 U.S. 644 (2015); Windsor v. United States, 570 U.S. 744 (2013); Lawrence v. Texas, 539 U.S. 558 (2003); Romer v. Evans, 517 U.S. 620 (1996). No. 3] Common Good Originalism 919 Then came Bostock v. Clayton County,8 last summer’s bitter disap- pointment in which the Court implausibly9 wove both sexual ori- entation and transgenderism into a key plank of the nation’s civil rights statutory edifice. The opinion, of course, was written by none other than President Trump’s first nominee to the Court and the man who replaced Justice Antonin Scalia himself, Justice Neil M. Gorsuch. With one stroke of a pen, the Justice Gorsuch-led Court majority misconstrued the proscription of private employment dis- crimination on the basis of “sex” in Title VII of the 1964 Civil Rights Act as encompassing not merely “sex,” but also “sexual orienta- tion” and “gender identity.”10 In so doing, this highly touted prod- uct of the conservative legal movement evinced and highlighted for all the shortcomings of a literalist, acontextual, overtly positivist ju- risprudence.11 That a man like Justice Gorsuch—closely vetted, with sterling ac- ademic credentials, formal natural law training, and top-flight so- cial conservative support at the time of his nomination12—could 8. 140 S. Ct. 1731 (2020). 9. See, e.g., Ryan T. Anderson, The Simplistic Logic of Justice Neil Gorsuch’s Account of Sex Discrimination, SCOTUSBLOG (June 16, 2020), https://www.sco- tusblog.com/2020/06/symposium-the-simplistic-logic-of-justice-neil-gorsuchs-account- of-sex-discrimination/ [https://perma.cc/3J44-YXQ2]; Josh Hammer, Neil Gorsuch Slapped Conservatives by Creating New Gay Rights, N.Y. POST (June 15, 2020, 8:28 PM), https://nypost.com/2020/06/15/neil-gorsuch-slapped-conservatives-by-creating-new- gay-rights/ [https://perma.cc/4RBZ-RSF8]. 10. See Bostock, 140 S. Ct. at 1755 (Alito, J., dissenting) (“The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous.”). 11. See, e.g., Hadley Arkes, Josh Hammer, Matt Peterson, & Garrett Snedeker, A Better Originalism, AM. MIND (Mar. 18, 2021), https://americanmind.org/features/a-new-con- servatism-must-emerge/a-better-originalism/ [https://perma.cc/XY3U-7T8W]; Hadley Arkes, A Morally Empty Jurisprudence, FIRST THINGS (June 17, 2020), https://www.firstthings.com/web-exclusives/2020/06/a-morally-empty-jurisprudence [https://perma.cc/U4HM-BLA5]; Hadley Arkes, Conservative Jurisprudence Without Truth, FIRST THINGS (July 20, 2020), https://www.firstthings.com/web-exclu- sives/2020/07/conservative-jurisprudence-without-truth [https://perma.cc/UPE9- JJGM]; Hadley Arkes, What Hath Gorsuch Wrought?, FIRST THINGS (Oct. 13, 2020), https://www.firstthings.com/web-exclusives/2020/10/what-hath-gorsuch-wrought [https://perma.cc/H5P3-3DST]. 12. See, e.g., Robert P. George, Ignore the Attacks on Neil Gorsuch. He’s an Intellectual 920 Harvard Journal of Law & Public Policy [Vol. 4 write an opinion like Bostock ought to serve as a wake-up call not only for those who prize the necessity of interpreting legal texts ac- cording to those texts’ original public meaning, but also for all con- servatives who prioritize above all the pursuit of the classical sub- stantive goals of politics qua politics: justice, human flourishing, and the common good.13 The time has indeed come for those in Amer- ica’s modern legal conservative movement to engage in sober, con- templative self-reflection—to reassess our first principles, retire our outmoded bromides, and rebalance prudence and dogma14 anew to reach a jurisprudence that actually serves our substantive goals.15 Too often, contemporary “legal conservatism”—as a methodology, not necessarily a specific judicial result—redounds against the in- terests of substantive conservatism itself. Legal conservatives too often pat themselves on the back for seizing a purported moral high ground of positivist neutrality,16 content to brush aside every high- profile defection as an unfortunate but inevitable byproduct of our sacrosanct neutrality principle. By contrast, legal progressives, marching in lockstep to the inherently outcome-oriented method- ology of Dworkinian living constitutionalism, never make such a first-order confusion of substance and “neutrality.” Perhaps those Giant—and a Good Man., WASH. POST (Feb. 1, 2017, 7:50 AM), https://www.washing- tonpost.com/posteverything/wp/2017/02/01/ignore-the-attacks-on-neil-gorsuch-hes- an-intellectual-giant-and-a-good-man/ [https://perma.cc/2CHU-K8DR]. 13. See, e.g., Josh Hammer, Who’s Afraid of the Common Good?, AM. MIND (Nov. 23, 2020), https://americanmind.org/salvo/whos-afraid-of-the-common-good/ [https://perma.cc/J4JK-8SB8]. 14. See, e.g., Josh Hammer, Conservatism Must Be Chastened by Humility, AM. COMPASS (Oct. 14, 2020), https://americancompass.org/the-commons/conservatism-must-be- chastened-by-humility/ [https://perma.cc/6E5J-RKFE]. 15. See, e.g., Josh Hammer, Judicial Carnage, AM. MIND (Oct. 30, 2020), https://ameri- canmind.org/features/what-comes-next/judicial-carnage/ [https://perma.cc/4TN4- D2TT]. 16. See, e.g., Ed Whelan, The Unsoundness and Imprudence of “Common-Good Original- ism”, PUB. DISCOURSE (Mar. 1, 2021), https://www.thepublicdis- course.com/2021/03/74424/ [https://perma.cc/FF7F-E5EK]; Ilya Shapiro, After Bostock, We’re All Textualists Now, NAT’L REV. (June 15, 2020), https://www.nationalre- view.com/2020/06/supreme-court-decision-bostock-v-clayton-county-we-are-all-textu- alists-now/ [https://perma.cc/7WCU-4L8B].
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