A broken clock is right twice a doomsday, I guess.
After a groundbreaking Supreme Court tenure that eviscerated precedent and cemented new, fabricated legal theories in my own life, many see the “legal conservative movement” triumphant. But Harvard Law School arch-curator Adrian Vermeule took to the Washington Post to shed some light on that opinion.
Rather than the triumph of conservative legal thinking, Vermeule asks what the “conservative legal movement” even means:
But this framing is based on an error: in reality, like this case [West Virginia v. EPA] clarifies that there is no such thing as a conservative legal movement, at least if legal conservatism is defined by jurisprudential methods rather than by a set of results.
Yeah…well, that’s not wrong.
He’s just pointing out what everyone (a) who’s out of the loop or (b) who has two working brain cells has been saying since at least the 1980s. But Vermeule is now starting to question the course of the movement with which he has been dancing for decades. It’s cute the same way you enjoy watching a child say, “Hey, I don’t think any of those three cards is the one I picked!”
The conservative legal movement distinguishes itself from other approaches by declaring itself united not around “results-oriented jurisprudence” but rather around a set of supposedly neutral methods of interpreting legal texts. Conservative jurisprudence – again, as advertised – rests on four pillars: originalism, textualism, traditionalism and judicial restraint. Although different conservatives emphasize one or the other approach, all are staples of Federalist Society events and praised in the opinions of conservative judges.
The use of the phrase “as advertised” is almost tragically apt. Conservative legal theory is and always has been a public relations campaign designed to dupe ordinary people into believing that radical legal activism is ordered by a connection to mythologized, infallible editors. But at all times, the cornerstone of the movement remained “whatever aligned with the political preferences of the contemporary Republican Party.”
When semantic games got there, it’s a very stylized brand of “textualism.” Failing that, he nodded to a handpicked narrative of “original public significance to the foundation.” When the Foundation story turned out to be troublesome, they began – basically just for gun laws – to reconfigure originalism around the public, meaning eighty-seven years after the fact. Consistency is the hobgoblin of honest actors, and the conservative legal movement dumped these people years ago for getting high on their own supply and actually believing this stuff.
But basing partisanship on a theory that seems superficially reasonable conferred a quasi-apolitical shield.
To Vermeule’s credit, he has complained for some time about the conservative legal movement. Although from his point of view the big problem is that concepts like originalism are not compatible with his fundamentalist worldview that the United States should discard the Constitution in favor of “the eventual formation of the Empire of Our Lady of Guadalupe, and ultimately of the world government”. required by natural law. Basically a transnational government of vaguely Catholic authoritarianism.
What makes this jeremiad a little rich: a guy who publicly dumps originalism as a drawback on the road to theocracy is suddenly annoyed that conservatives don’t seem to be moored to originalism?
So what’s going on here?
If there is no legal conservative movement, what is? The answer is not mysterious: there is a libertarian legal movement, an abiding opponent of federal regulation, supported and streamlined by a well-established network of richly funded quasi-academic and advocacy institutions – in essence, a resurrection of the 1930s Liberty League.
Ah, the Court that hides under all these contrived theories is simply too libertarian!
Frankly, it’s impossible to watch the Supreme Court strike down the Establishment Clause and think it’s the result of a libertarian legal move. Barry Goldwater, the proto-libertarian American was openly pro-choice and yet we have Dobbs, a view so steeped in pre-founding traditionalism that she cited witch hunters with approval. It is these opinions that lay the foundation for Vermeule’s preferred order.
But originalism and textualism are conceits that are soft enough to open the door to religio-fascism, but are also too inviting to “defend the individual” in the party to achieve this reliably.
Unless he is wildly naive, Vermeule is not really offended that this Court treats established conservative legal theories as playthings as much as he sees in them an opening to pierce the apolitical veil protecting jurists that he considers too libertarian. And if accepted legal theories are a mirage wielded by right-wingers who don’t really appreciate a good book burning, maybe this is a chance for conservatives to try their own “common good constitutionalism.” It’s just as intellectually bankrupt but it’s just a little harder to be one of those RINOs justifying heliocentrism!
Because I don’t buy that the guy who titles his works “Beyond Originalism” really sheds tears that the Court doesn’t appropriately respect original public sense and no one else neither should.
But Vermeule writes specifically for the audience that bought into originality in the first place, so he knows he’s got a bunch of easy notes.
There is no conservative legal movement [Washington Post]
Earlier: Hey, can someone at Harvard Law School check out Adrian Vermeule?
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email tips, questions or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe is also Managing Director at RPN Executive Search.