Shock Therapy for Our Lawless Legal System

Jesse Merriam persuasively argues that legal conservatives are no longer committed to maintaining the essential features of the American legal and political order. They are instead obsessed with matters of constitutional interpretation, emphasizing the related doctrines of originalism and textualism. So they consider it something of a victory when progressive justices such as Elena Kagan and Ketanji Brown Jackson embrace those doctrines, even though it’s perfectly clear they will use them for progressive ends. Indeed, even Justice Neil Gorsuch, an avowed textualist, did so in Bostock v. Clayton County (2020) when he insisted, absurdly and ahistorically, that Title VII of the 1964 Civil Rights Act protects individuals from employment discrimination based on sexual orientation and gender identity. His pretextual textualism is as lawless as anything that has animated judicial supremacists since at least the 1950s.

Furthermore, making originalism and its variants the core of legal “conservatism” is a fool’s errand. It does not give conservatives a positive legal language in which to express, or a legal agenda with which to fight, the substantive evils that non-originalist decisions represent. And this assumes that originalism even provides the tools to overturn such decisions, which is hardly clear.

Finally, the narrow interpretive orientation of legal conservatism gives a tactical advantage to progressives, who abhor a vacuum. To the extent the legal landscape is occasionally shifted by originalism, as in Dobbs v. Jackson (2022), conservative political ground is quickly ceded to the Left.

Merriam insists that law must be reconceived “as a way to sustain the American way of life.” But constitutional originalism by itself will not do this, because it runs into the brick wall of the civil rights regime, whose firm ideological commitments are to diversity and anti-discrimination. Originalism, whether due to methodological limitations, caution, or fear, will not threaten “the constitutional morality of the civil rights era.” Both the spirit and the body are weak. So, in the vast areas that touch on civil rights, originalist jurisprudence is doomed to be self-limiting in its willingness to protect the prerogatives of states and individuals in the face of the civil rights juggernaut.