Speaking on the floor of the Senate, Josh Hawley called Bostock v. Clayton County a “seismic” decision. “If we’ve been fighting for originalism and textualism and this is the result,” he complained, “then I have to say it turns out we haven’t been fighting for very much.” Bostock “marks a turning point for every conservative,” Hawley claimed, “and it marks a turning point for the legal conservative movement.”
But a turning point to what? Some in the conservative legal movement have a ready response. A judge should bend the law toward the “common good,” they contend, with “common good” defined as outcomes conservatives like.
The hardliner will always be with us. There will always be that guy pushing jurists (only the ones on his ideological side, naturally) to abuse their power by resorting to results-oriented judging. In this instance, fortunately, the “common good” legal theory has yet to find a toehold in the federal judiciary. This might be because it is so obviously just the rightwing version of the leftwing judicial activism in opposition to which the Federalist Society was born. For Justice William Brennan, one of the great liberal activists of the mid-twentieth century, the magic label that released him from following rules was not “common good,” but “human dignity.” “Replace ‘common good’ with ‘human dignity,’” jeers Judge William Pryor, a conservative firmly of the FedSoc old school, and “living common goodism”—his derisive term for the “common good” movement—“sounds a lot like Brennan’s living constitutionalism.”
So, again, Bostock is supposed to be a turning point to what? The top-down intellectual effort to convince judges that the words “common good” are a license to distort the law is (so far) a bust. But what about bottom-up cultural forces inducing more “Trumpist” judicial behavior?
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