Conservative Legal Philosophy Was All a Lie, Too
The textualists and originalists have taken off the mask.
Great analysis of yesterday’s oral arguments across The Bulwark: Kim Wehle was on the site and then talked with Mona and Gregg Nunziata on the livestream. Sarah and George Conway did an emergency pod. Andrew Egger had good stuff in Morning Shots.
And then Sarah and I did a Secret show on the SCOTUS debate.
This is The Bulwark at its best: Smart people thinking through an important moment without a party line.
This is the home you’ve been looking for. Join Bulwark+ today.
1. Conservatism
A few years ago my buddy Stuart Stevens wrote a book called It Was All a Lie.
His thesis was that the dogma conservatives had professed for 60 years—the love of small government and free trade; the desire for robust foreign policy; the belief that character and accountability mattered—turned out not to be values but rationalizations.
In Stuart’s view, conservatives had a bunch of groups they disfavored and then worked backwards to concoct an ideological framework to support these prejudices. No, not all conservatives. And maybe not on every single issue. But enough so that the generalization was generally fair.
When Stuart first published his book I thought it was an interesting idea. The preponderance of evidence that has emerged since 2020 has buttressed his case.
Yesterday the Supreme Court hinted that maybe conservative legal theory was always a lie, too.
Donald Trump, as always, is the great revealer.
In general, conservative legal theory over the last two generations has been marked by a few big ideas:
That originalism and the text of the Constitution matters.
That judges should not make policy or legislate from the bench.
That courts should issue decisions as narrowly as possible, so as to leave the field open for both future legal maneuver and legislative action.
That when possible, courts should defer to the will of voters.
Am I generalizing here? Yes. Are there distinctions between schools of conservative legal thought? Sure.1 Let’s grant all of those distinctions and caveats.
Even so, from the 35,000-foot level everyone understands what was meant over the last 40 years when people talked about “conservative legal theory.”
With its decision on the Fourteenth Amendment case attempting to disqualify Trump from the ballot in Colorado, the Supreme Court’s conservatives abandoned any pretense of adhering to the text of the Constitution. The plain text of the Constitution pointed to an outcome that the Court’s conservatives disfavored—perhaps for good reasons, perhaps for bad reasons—and so they just . . . made up a new standard.
With the presidential immunity case the SCOTUS was given an iron-clad ruling from the D.C. Circuit Court of Appeals. The high court did not need to hear this case at all.
If it believed that, for reasons of legitimacy, it needed to weigh in, the Court could have granted cert to this appeal on the narrow question of whether or not Donald Trump, in this particular case, could claim immunity.
Instead, the Court granted cert on the widest grounds possible, giving itself the scope to define presidential immunity for all time. Kim Wehle talked about this choice last night and it is striking how the conservatives on this Court were eager for the chance to create precedent.
“We’re writing a rule for the ages,” Justice Neil Gorsuch said during oral argument.
But no one asked Gorsuch to write a rule for the ages. The Court was given a narrow question to decide and the Court’s conservatives chose to widen the aperture as much as possible so that they could make right some cosmic wrongs they see in American law.
Which is exactly what conservatives used to complain that liberal judges did.
Then there’s the conservative legal view of law enforcement. Conservatives have historically been broad-minded about the powers the criminal justice system ought to have.
Yesterday at oral argument the conservatives suddenly had second thoughts. As Radley Balko put it,
It’s just mind blowing to hear the same justices who continue to support absolute immunity for prosecutors and limiting federal review of state prosecutor misconduct suddenly alarmed that prosecutors might overreach when it comes to charging **the president of the United States.**
Oops.
Finally there is the question of voters: the will of the great and good American people. Justice Samuel Alito posed a hypothetical:
If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?
I want to be very clear about what Justice Alito is saying here:
Donald Trump attempted a coup, and failed.
The criminal justice system is attempting to hold him accountable for this clear violation of the law.
But doing so might lead to some other president to attempt a coup.
So if someone attempts a coup they must not be prosecuted.
Because if you prosecute them, they might attempt another coup.
The Alito Theory sees a coup as merely an alternate path to power, no more or less valid than an election.2 If a coup is attempted and succeeds, the couper becomes president and faces no consequences. If a coup is attempted and fails, the couper is immune to prosecution and free to attempt another coup in the next election. And perhaps even in the election after that.
From Alito’s perspective, a coup is no different from a recount or a lawsuit attempting to disqualify ballots. It’s just another electoral Hail Mary pass.
Though, of course, sometimes those passes are caught.
Before we wrap up: Usually this newsletter is locked so only members of Bulwark+ can read it. Today we opened it up.
If you’re not a member yet, you should be with us. You won’t regret it. Promise.
So two final thoughts.
First, I’ve been saying for months that this Court was going to do everything possible to prevent Trump’s D.C. insurrection trial from happening before the election.
I don’t want to question anyone’s motives, but I ask you sincerely: If the Court were packed with justices who were trying to return Trump to power, what would it be doing differently?
It’s JVL’s Law: Any person or institution not explicitly anti-Trump will become useful to Trump over time.3
Finally, I’ll give the last word to Nicholas Grossman, who also senses that all of that conservative legal theory chin-tugging was just rationalization:
Conservative Justices approach “can the president legally kill Americans he doesn’t like?” from the perspective of people confident the current president would never order them killed, and the only president who would possibly abuse power like that would kill people the conservative Justices don’t like.
2. Hellcat
That was all kind of heavy so I have something happy for you: Hannah finished the Hellcat!
The final entry in her race diary is epic:
This year, The Speed Project saw Greek tragedy levels of adversity, from packs of rabid dogs to torrential rain and snow to washed-out roads leading to accidents and aggressive traffic, the stakes and danger were higher than ever. This is the story of how the Feral Angels ran 340 miles in 48 hours and 22 minutes to be the first-place all-female OG team to make it to Las Vegas. . . .
It’s easy to go fast on the first day. You have the adrenaline and you’re fully fueled and you’re hopefully well rested. Then there’s the energy of the other teams at the start line. Teams’ lead runners take off at 4am sharp, buoyed by the communal call-and-response cheer of “RUN, MOTHERFUCKER, RUN!” led by Jarick, a veteran Speed Project MC. It is electric. Despite the field growing to 77 teams, the gathering is still contained within a tight radius, easily parting to make way for traffic, never blocking the road. The race still feels like an underground secret. It is pitch dark except for the neon Santa Monica Pier sign and the glow of countless open phone screens recording the sea of runners. The crowd scatters instantly after the runners depart. There are no spectators.
You should subscribe to Hellcat now because she’s going to do one more post about what happened after the race—which is the greatest story ever.
3. Prepping
In my heart, I’m a prepper, but in reality, not so much. I have a generator and a well. I own enough life straws for the entire family and we keep a pack of Kirkland Baby Wipes in every room of the house. But that’s about it. So this piece was geared to me: It’s prepper lit for the non-prepper.4
At one point, attendees were asked to join their tablemates to play a networking game: loteria, but adapted to be about preparedness. In said game, I revealed that I had a generator and the guy sitting next to me – who was a FEMA staffer, but attending as a civilian – whispered: “I really don’t think you should tell your neighbors that.”
“Why do you say that?” I asked.
He shot me a grave look and said: “You don’t know what their intentions will be if they’re desperate.” . . .
I have no illusions that existence on Planet Earth is safe, but I also don’t want to spend my life expecting the worst. So I don’t know what’s sicker: the anxiety of feeling unprepared or the anxiety of being certain that disaster awaits.
We could argue about Alexander Bickel versus Antonin Scalia and point out the contradictions of the judicial branch seeking to maximize executive power via the idea of a unitary executive.
Also, I have many friends in conservative legal world who I believe are sincere in their views.
Finally: Just because an idea was insincerely held doesn’t make it wrong. It’s possible that the precept of keeping judicial rulings as narrow as possible was (a) a conservative rationalization for prior prejudices, but also (b) a sound idea that is generally beneficial.
In fairness to Alito, I suppose this view is only valid if the couper is the sitting president. A challenger who attempts a coup is immune from criminal prosecution.
Though of course, this dynamic creates its own problems.
“Anti-Trump” meaning “anti-authoritarian,” obvi.
Hi Lara!
"Conservative Legal Philosophy Was All a Lie, Too"
We know, we've been shouting it for years. 🤷♂️
My view on originalism is that is has always been a lie, if you bothered to actually, you know, reason it out for a few moments. Allow me to explain what I mean.
Let's start from the position that we are an originalist. Not a textualist, as that has a different meaning. But an originalist specifically. The logical idea behind it is that the laws are the laws; they were written with specific intents, and those intents should not be extrapolated to mean anything you wanted. For example, if you passed a law banning knives, you would not take that to mean all weapons, because that is not what the law said. That's the IDEAL.
However, in practice, originalism is only brought up for one reason: stopping progressive causes. What I mean is that the way in which it is deployed is for things like 'well, if the civil rights act didn't say trans people, that means trans people shouldn't have rights like everyone else.' At every turn, the only time originalism is held up as a legal doctrine is when it's trying to stop people from gaining rights. We have not see it deployed, say, to ensure that people are more fairly treated, or to stop overreaching government programs such as the Patriot Act. During those times, the originalists are silent.
Furthermore, there's another side of logic to the originalist cause: if you don't like the way a law was written, pass a new law. And that too, makes sense until you look at a place like Alabama, or look at the behavior of the GOP in regards to how they govern in practice, and you realize that when they are faced with a law they don't like, they just ignore or nullify it.
They take the Jacksonian approach of 'they've made their ruling, now let them enforce it.' Which is exactly the opposite of the originalism position. But again, they never take this stance in regards to say, making sure that black people or felons aren't disenfranchised. No, they only take it when their power is threatened.
In other words, they will fall back on originalism to defend the shooting of unarmed black people, but they will stretch the law to it's furthest extent in order to allow Greg Abbott to set his own border policy. Because the idea of originalism is a facade, and always has been.
Originalism, as they intended it, is as Buckley once described: Stand athwart history, yelling stop.
Originalism in practice means 'we shall rule against any changes, and we shall prevent any new laws from being passed to change these laws, ensuring that our power is never challenged.' This has been, across the board, the way in which it has been implemented, ever since Nixon.
And while I am painting with a broad brush, I ask again: has there ever been a time when someone leaned on the supposed doctrine of originalism in order to advance the cause of liberty? Has there ever been a case where someone asserted that the laws, as originally written, benefitted anyone beyond the already empowered? Do conservative originalists use their doctrine to advance the cause of the poor, or minorities, or women?
Or do they use it as a crutch to claim that they are impartial while they also prevent anyone from passing laws that might change things in a way that they say the law should?
In other words, originalism is a motte and bailey argument. They assert that what they are doing is just adhering to the law, while in reality articulating a theory of governance that boils down to 'we are the law because we are right, and we are right because we are the law.'