Liberals who are dismayed by the confirmation of Supreme Court Justice Neil Gorsuch should cheer up. Things could be a lot worse. Some day, conservatives may embrace post-constitutionalism, just like the left. On that day, liberals will appreciate the Neil Gorsuches and the Antonin Scalias, just as Donald Trump has taught them to appreciate George W. Bush.
Unlike most conservatives, I do not think of our existing Constitution as a particularly great governing document. I appreciate it for establishing a set of norms. Our Constitution creates a set of rules and plausible interpretations for political actors. It places bounds on power. Perhaps some other structure would be better—but we have every reason to doubt that either our disconnected and grasping elites or our hapless, thoughtless, almost hopeless populists could design an improved system.
Judicial liberals have abandoned the idea of the Constitution as a set of rules and plausible interpretations. For them, the Constitution exists only as a vague justification for the use of judicial power in the service of whatever side liberals are on at a given moment.
We saw this in the questioning of Neil Gorsuch, as Democratic senators condemned him—not for being wrong on the law, but for ruling against groups liberals favor and in favor of groups liberals despise. This anti-constitutional and anti-law approach to the judiciary is often dressed up as a defending the weak (such as Planned Parenthood) and standing up to powerful oppressors (such as the Little Sisters of the Poor).
The ambition of judicial liberalism can be observed in a couple of articles. Thomas Geoghegan dreams that, with one more liberal justice, the federal courts could have taken over congressional redistricting, micromanaged school funding decisions, and forced local governments to shut down the gun industry. This, of course, is just the beginning. Geoghegan writes of the role of judicial liberals:
In a way, it’s discouraging to hear so many anti-Trump voices saying that we must defend the Constitution. I understand the sense in which they mean it, but the challenge for the left has always been not to defend but to change the Constitution.
Geoghegan says he wants to “to get rid of gerrymandering and all the other devices that frustrate the popular will.” But we may doubt whether he wants abortion policy to be set by the popular will. “The popular will,” in Geoghegan’s usage, is whatever Geoghegan and his allies want.
The worst (or perhaps most honest) example of this line of thought came from Mark Tushnet last year: He argued that liberal judges should wield the law against conservatives, to “empower our allies and weaken theirs.” He suggested that, ideally, conservatives would relate to a liberal judiciary as a conquered, occupied population to their conquerors.
The good news is that judicial conservatives have not followed liberals down this road of vindictive anti-constitutionalism. There were voters on the right (and in the center) who supported Trump because of his seeming willingness to say or do anything. But many others supported him because they hoped he would appoint constitutionalist judges whose terms would outlast his presidency.
So far, Trump has done that. We can hope this portends that conservative judicial politics will stay within the bounds of originalism. At best, it is barely conceivable that the Supreme Court will strike down Roe v. Wade (rather than nibbling at the edges of that extreme decision). Yet it is all but unimaginable that the Court would declare the unborn to be human persons and fully protected by the Constitution. Even Antonin Scalia, the great originalist, argued that this was not the constitutionalist position.
This is the great asymmetry between judicial liberalism and judicial conservatism. Judicial liberals will stop at nothing to get the outcome they want. By contrast, there is zero chance that the Supreme Court will find a constitutional right to life for the unborn, and encourage the use of lawfare to destroy abortion providers for being violators of human rights under disparate impact laws. Thus, Mark Tushnet may disagree bitterly with conservative judges, without fearing that he will be living in an occupied America under a conservative court.
It may not be this way forever. If the mass of conservatives get the idea that constitutionalism is a loser’s game (when conservatives win, liberals get constitutional protections; when liberals win, conservatives get the shaft), then conservative originalism might be replaced by an equally vindictive and outcome-based right-wing jurisprudence.
You can see the outlines of such a jurisprudence among Trump’s more obnoxious media supporters. Originalism places certain bounds on the “conservative” legal position as relates to the judiciary. A post-originalist right-wing judicial philosophy might well mainstream marginal positions—such as declaring that Muslims are not protected by the First Amendment’s free exercise clause. Such an interpretation is hideously wrong, but it is no more dishonest than Thomas Geoghegan’s enthusiasm for using the Americans with Disabilities Act to shut down gun sales.
Some may object that a demagogic, anti-constitutional, right-wing judicial politics would prove too unpopular to win. I would suggest that these people have not been paying attention to recent events. Conservatives haven’t (yet) decided that the challenge of the right is not to defend the Constitution, but willfully to misinterpret it to get whatever they want. God help us all when the day comes that there are no more constitutionalists.
Pete Spiliakos is a columnist for First Things.