How To Get Conservative Judges To Do Conservative Things

Despite over a half-century of trying, Republicans still have not figured out how to get conservative judges to consistently do conservative things.

Admittedly, Republicans have improved at this over time, helped by the rise of the Federalist Society and the collapse of the filibuster for judicial nominees. However, the courtroom disappointments keep coming, most famously Bostock v. Clayton County, where Trump appointee Neil Gorsuch read “gender identity” into the definition of “sex” in the Civil Rights Act of 1964. Just last term, the Supreme Court delivered another disappointment in its abortion case FDA v. Alliance for Hippocratic Medicine, ruling for the Food and Drug Administration on the arcane issue of standing when it should have ruled for Alliance for Hippocratic Medicine on the more pressing issue of FDA egregiously breaking its own rules to approve the abortion drug mifepristone on loose terms.

The main reason for Republicans’ struggles is that their preferred judicial philosophy, originalism, produces inconsistent results. Liberal justices always vote liberal on cases that really matter. Conservative justices do not always vote conservative and can often be peeled off to the liberal side.

In Bostock, the four liberal justices voted as a bloc and peeled off two conservative justices (Neil Gorsuch and John Roberts) to join them. This pattern has occurred for many years, skewing the Supreme Court’s case law left over time. Once-unimaginable feats of leftist creativity such as Obergefell v. Hodges are now unimaginable to repeal, while the conservative movement’s greatest legal victory, Dobbs v. Jackson, came after 49 years of Roe v. Wade, included squishy concurrences from Justices Roberts and Kavanaugh, and has been followed up with abortion non-victories such as Alliance for Hippocratic Medicine. If this is the best Supreme Court existing originalism can offer, conservatives should be looking for an upgrade.

The current problem with originalism is that it has no definitive way to deal with ambiguity. The originalist movement began as a reaction to the famously bad-faith Warren Court, which created a panoply of new rights with no statutory basis whatsoever. Conservatives responded by asserting originalism as their new creed.

At its core, originalism was about following directions: Liberal judges may make stuff up, but conservative judges would follow the law. The gambit worked spectacularly; originalism is now the dominant American legal method, to the point that liberal justices often couch their arguments in originalist terms. However, originalism has not had the full constraining effect its proponents had hoped for. It is not fully adequate for resolving hard cases where the correct understanding of the law is unclear. In those cases, leftist and conservative judges alike default to liberal background principles. 

A major reason why originalism is failing is that many conservatives and originalists do not appreciate the religious aspect of law. In hard cases like the ones that take up appellate courts’ attention, the written and unwritten law may not be fully conclusive, making first-order considerations of fairness, morality, and reason important. Judges not only have to decide individual cases correctly but also have to curry broad societal buy-in for maximum effect. The easiest way to do this is to appeal to society’s common religious framework, which is part of why all of the world’s major religions have a corresponding legal tradition, especially Islam, Judaism, and Christianity. 

Liberalism may be a latecomer to the game, but it is a full-blown religious and legal tradition nonetheless. The fundamental driver of the Warren Court revolution was a religious shift: America’s official elite culture changed from Christian to liberal, and the Warren Court went along for the ride, imposing that same change on the American legal system writ large.

Importantly, both liberal and conservative judges are steeped in this culture and are true believers themselves. Conservative judges are more sympathetic toward economic rights, and liberals toward social rights, but both groups see the paramount objective of the Constitution as preserving individual rights. They also see Brown v. Board, the Pandora’s Box of Warren Court decisions, as a (if not the) canonical constitutional case. This is why justices like Neil Gorsuch cannot seem to help themselves when a new kind of liberal right begs for recognition on the court’s docket, even if it is something ridiculous like the right to cross-dress.

The most thoughtful right-of-center critic of American originalism is Adrian Vermeule. In his manifesto, Common Good Constitutionalism, Vermeule calls for the return of what he calls the “classical legal tradition,” or, in other words, the Western legal tradition pre-1954. That tradition answered legal questions by using the text of the law, of course, but it also drew richly from customary law and the Christian-inflected natural law. Vermuele correctly notes that this system was more honest and effective than always-fake originalism or always-bad-faith progressivism.

However, returning to the “classical legal system” is a nonstarter today because modern American society is not predominantly Christian and is instead polycultural. Its legal system needs cross-cultural appeal. Liberalism fulfills this need; Christianity does not. This is why all six of the Supreme Court’s conservative justices never use Christian legal reasoning in their appeals despite being devout Christians themselves, focusing instead on liberal ideas of rights. America’s Christian legal activists similarly fixate most of all on religious freedom, framing their interests in liberal terms.

While replacing bad court decisions is easy, replacing liberalism as judges’ ideology of choice is harder. Conservative judges seem to revert to rights rhetoric subconsciously, as if liberal ideology is baked into their psyches at a deep level. However, conservative judges also have a powerful alternative to rights rhetoric: rule-of-law rhetoric.

This was deployed spectacularly in Dobbs, where the majority aggressively criticized Roe v. Wade for not only having no constitutional basis but for impinging on democracy and rule-of-law principles on a fundamental level — complaints that could be made about many other bad liberal precedents.

Conservative judges would also do well to freely make up reasonable answers in truly ambiguous cases rather than engaging in convoluted textual analysis (see Bostock) or overwrought historical analogizing (which the court did most famously in New York State Rifle and Pistol Association v. Bruen, where it devised a broad “history and tradition” test for Second Amendment gun rights). Made-up answers are better than convoluted non-answers, especially when those convoluted non-answers always seem to lean libertarian and leftist.

Liberal Supreme Court decisions reshaped everyday American life over decades. We have them to thank for ubiquitous internet porn, urban crime, and HR lady supervision. Conservative decisions have had more muted effects. Women seeking abortions sometimes have to cross state lines to do it, Harvard admits slightly more Asian Americans than before, and blue states get pushback when they abuse gun owners and traditional religious believers.

However, we are still not living in the legal world conservative activists have long hoped and prayed for, where judges respect the will of the people as expressed by their legislators and where judges read the Constitution the same way the Founding Fathers wrote it. Only as conservative judges discover the revolutionary side of their favorite method and leave their liberal baggage behind will we start to live in that world.

Ben Ogilvie is a JD-MBA student at the University of Chicago, and before that he was a management consultant, a Covid researcher, and a Latter-day Saint missionary in the Philippines. His work has appeared in The Wall Street Journal, The American Conservative, and on X at his account @gogglesmammoth.