For some conservatives, bracing themselves on the night of the election, the evening offered nothing less than a miracle unfolding. But that sense of things was even more pronounced for young lawyers defending religious plaintiffs in the courts, and for the small band of conservatives on the Supreme Court. For them, it was an evening of deliverance. The lawyers were going into court to defend clients like the Little Sisters of the Poor, trying to resist mandates on abortion, and these lawyers were facing three-judge panels containing appointees of Clinton and Obama. They knew with a cold surety what those panels would look like four or eight years hence as a new Clinton administration filled them with the professoriate of the left. As for the conservatives still sitting on the Supreme Court, they were suddenly delivered from the prospect that so afflicted our late friend Antonin Scalia—that they would be condemned to a life of writing angry dissents.
What a striking moment it was, then, to see President Trump bringing forth Neil Gorsuch as the successor for Justice Scalia. No grumbling conservative could have served up a better choice, whether measured as a serious scholar, writer, craftsman of the law, or a person so completely in control of himself and the principles that command his allegiance. And it had to be evident to the Never Trumpers that this choice would never have issued from Hillary Clinton. As the possibilities start to unfold, the same people who brought us the selection of Neil Gorsuch might have the chance to provide one, two, or even three more nominees. But even if this administration has the chance to set the character of the Court with more appointments, we are still left with the cardinal question: What difference would that really make to the character of our jurisprudence?
The seasoned veterans of the two Bush administrations think they know enough now to avert the selection of another Anthony Kennedy, Sandra Day O’Connor, or David Souter. These judges had a demoralizing effect on conservatives when they defected on the matter of abortion, and Kennedy even more so as he advanced the case for gay rights along a path that surely led to same-sex marriage—as Justice Scalia clearly saw and sharply warned. But how would these mistakes be averted? The conservative lawyers who screen the candidates for judgeships seek to be prudent by nimbly avoiding anything so plain and direct as asking the candidates exactly how they would vote on these matters. The interviewers try to divine the answer by asking questions that would test in some way the principles of judgment, or the understanding of “jurisprudence,” that command the respect of the judge. But will that probing really touch the core of things now? Or will it yield the same kind of mechanistic style that has made conservative jurisprudence so morally empty—and so incapable of facing the challenges raised in litigation by the left?
Justice Holmes gave voice to the modern legal project when he registered the hope that “every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.” In other words, an understanding of “law” made ever purer by being ever more detached from any moral content. Conservative lawyers and judges have had no special reverence for Holmes, but they have backed themselves into a comparable understanding as they have recoiled from what they see as the vice of liberal jurisprudence: a cavalier willingness to appeal beyond the text of the “positive law,” the law that is posited or enacted, either in statutes or in the body of the Constitution. The dreaded appeal would be to those principles of law so deep that they are not contained in the text of the Constitution (for example, that “we do not hold people blameworthy and responsible for acts they were powerless to affect”). In the hands of lawyers such as John Marshall, James Wilson, and Alexander Hamilton, these axioms of law would be there even if there were no Constitution. Which is to say: They are part of the “natural law,” the dreaded “N-word” among some conservative jurists. The concern of judicial conservatives was sparked by those liberal judges untethered from the discipline of the text, who would soar off to invent new “rights.” But if the concern was that liberals went beyond the text and engaged in spurious moral reasoning, the corrective surely would be to show why the reasoning was spurious. The conservatives chose a different path: In a stroke of ingenuity, they would cut off the path of the liberal judges by forgoing moral reasoning altogether! They would offer, as a rival vision, a jurisprudence that forswears any appeal to principles outside the text of the Constitution.