It isn’t easy keeping either of America’s big coalitions together. In the opening months of the Trump administration, Republicans divided over foreign policy (neoconservative hegemonists vs. Jacksonian isolationists), trade policy (traditional Republican business interests and libertarians vs. Trumpian protectionists), immigration (ditto), health care (everybody against the Ryan plan) and, it now seems, even taxes. The Democratic Party was better able to unify around opposing Trump and the Republican desire to repeal Obamacare, but the division between its social-democratic and neoliberal wings – exposed by the surprisingly effective primary challenge of Bernie Sanders – reemerged in the struggle for Democratic National Committee chair between Keith Ellison and Tom Perez. The Trump era looks set to realign the partisan and ideological system that has characterized American politics for the last half-century.
But one issue was an exception. The nomination of the mild-mannered Neil Gorsuch as junior justice of the U.S. Supreme Court united each party internally and totally polarized them against each other. The U.S. Senate – long a bulwark of individualism and cross-party back-scratching, with at least ten Republican members who have publicly feuded with President Trump – divided almost perfectly on party lines. The minority Democrats took the politically risky step of filibustering a nominee whose professional qualifications were difficult to question. And then the majority Republicans took the equally perilous step of rewriting the body’s rules to eliminate the ability of a minority to filibuster a Supreme Court nominee (the so-called “nuclear option”).
The United States has never had the disciplined party structure of parliamentary democracies like Canada and the resolution of the impasse undeniably reduces the overall power of senators. For this reason, the Republican majority has ruled out taking the same step of eliminating the filibuster for ordinary legislation or budget issues, and Democrats would be unlikely to force such a result if they could avoid it. On these other matters, the institutional interests of senators are more powerful than their ideological loyalties. But for Supreme Court nominees, neither party’s base would tolerate such a set of priorities. If another justice dies or retires before the next presidential election – and three of them were born in the 1930s – this disciplined partisanship is very likely to be repeated.
To an outsider, it is strange that the most perfectly partisan issue in American politics is nomination to a purportedly nonpolitical office. On further investigation, it just gets stranger – and says a lot about the dangers to the rule of law of constitutionalizing moral and political conflicts.
From Scalia to Gorsuch via Trump
The fight that led to Gorsuch’s nomination began almost a year before Trump took office. On the night of February 12, 2016, after a day of quail hunting, Justice Antonin Scalia died in his sleep. For someone who made his name as an expert in administrative law and statutory interpretation, Scalia was a colourful and controversial character. A conservative Catholic who was acerbic both in oral argument and in writing, he typically voted for results congenial to the political right – although he was proud of the exceptions, such as his vote in Texas v. Johnson that flag burning is constitutionally protected free speech, as well as his numerous decisions limiting the scope of criminal statutes and protecting what he thought of as rights of criminal defendants.1
Scalia cut his teeth as a free-market critic of federal regulation, particularly of telecommunications. He was thus a minor player in the “law-and-economics” movement of the 1970s that analyzed law in terms of neoclassical microeconomic theory. But his more important role was in defining the specifically legal views of the American right, views that at least purport to eschew any connection with market economics or traditional morality.
Scalia propounded constitutional “originalism” (the idea, refined by Scalia, that the text of the constitution should be read in terms of the “public meaning” it had when adopted), Chevron deference (the idea that the executive branch should get to interpret its statutory powers when they were ambiguous) and statutory textualism (a refusal to pay attention to the political history of a law, combined with a relatively literal reading of its meaning). Although there are certainly conservative lawyers who disagree with one or more of these ideas, these ideas have largely defined the conservative mainstream since the Reagan era – in no small part as a result of Scalia’s energetic advocacy of them. Originalism and textualism in particular stood in contrast to the mainstream of American legal thought, which (as in Canada) prioritizes pragmatism and judicial discretion over the highly formalist and positivist approach Scalia advocated.
The relationship between Scalia’s legal commitments and political conservatism is as controversial as the legal ideas themselves. In any particular case, the results of reading constitutions historically, deferring to presidential administrations or reading congressional enactments textually could be liberal, conservative or neither depending on the constitutional provision, the administration or the Congress. Many of Scalia’s critics have argued that he applied his legal ideas inconsistently when they conflicted with his political biases.2 Scalia did not always deny this, but argued that formalism created an objective standard by which he could be judged, while pragmatism makes a virtue out of political bias.3 At the same time, in a larger sense, Scalia probably thought his legal views supported an overall populist conservatism, because he thought that the progressive agenda was promoted by judges reading the modernist prejudices of their class into constitutions and statutes.
However, another view of the “original” meaning of phrases in the Fourteenth Amendment like “equal protection of the laws” and states being prohibited from depriving any person of “life, liberty or property without due process of law” is that these words enacted principles that are capable of new application as social understanding changes. From this “new originalist” perspective, the original force of the Fourteenth Amendment comes from the underlying revolutionary principles of the post–Civil War Reconstructionist era, not the specific views of the majority of the population at the time. It is perfectly consistent with these principles and with the text to apply “equal protection” to gay and lesbian people and “liberty” to their freedom to marry, regardless of how fringe a view this would have been in the 1860s. Recently, an increasing number of progressive judges and legal theorists have come to see that this is not a dispute about whether the original public meaning of constitutional texts is binding, but about how meaning should be understood. Jack M. Balkin’s 2011 book Living Originalism4 sets this progressive originalist position most coherently, and Elena Kagan, President Obama’s former Solicitor General whom he appointed to the Supreme Court, set it out most pithily at her confirmation hearing when she said, “We are all originalists now.”
While Scalia was on the court, the median justice in ideologically charged cases was Anthony Kennedy, a moderate Republican appointed by Ronald Reagan when the more fearsomely conservative Robert Bork proved unacceptable to the Senate. Kennedy clashed most memorably with Scalia on gay rights issues,5 but was often aligned with the conservative wing of the court in other respects. Scalia’s death during the presidency of Barack Obama appeared to open up the possibility of a Democratic-appointed liberal majority. Obama nominated Merrick Garland, by all accounts a moderate liberal generally disinclined to interfere with the elected branches of government, whether for conservative or progressive reasons. Garland was about as favourable a justice as Republicans could expect from a Democratic president. However, while Democrats controlled the presidency, Republicans controlled the Senate, and they refused to allow Garland’s nomination to come to a vote while Obama remained in office.
Trump’s nomination as Republican candidate for president came as a shock to the leaders of the conservative movement – who believed they had established a lock on the Republican Party since Reagan. The “Reagan coalition” was mobilized around three ideological blocs: social conservatives motivated by a desire to preserve traditionalist virtues, economic libertarians motivated by a pro-market ideology and neoconservatives who advocate an assertive military and foreign-policy posture by the United States. Trump’s obvious personal failings and lack of religious convictions, ingrained protectionism, support for popular spending programs and inconsistent isolationism did not faze the Republican primary electorate, which warmed to his ultranationalist identity politics and authoritarian persona. But little Trump said was consistent with movement conservatism as it had been understood for 40 years.
Nevertheless, while some conservative thought leaders – especially those for whom foreign policy was particularly salient – abandoned Trump altogether, most social and economic conservatives were won over by the time the election rolled around. And indeed while much postelection punditry has focused on the small number of traditionally Democratic rust belt voters who switched from Obama, Trump avoided the electoral annihilation midcampaign polls predicted because traditional Republicans voted for him.
Instrumental to this consolidation was Trump’s commitment to appoint a replacement for Scalia from a shortlist of judicial conservatives prepared by leaders of the Federalist Society, a group of conservative and libertarian lawyers and law professors (while Gorsuch was not on Trump’s original list, he was on a supplemental list delivered later in the campaign). More than any other single thing Trump did on clinching the nomination, this commitment brought the majority of the “movement” behind him – enabling him to win in November despite the well-founded doubts of many movement leaders about his ideological reliability, competence and character. Delivering on this commitment, shortly after being inaugurated Trump nominated Judge Neil Gorsuch, appointed to the federal appellate courts by George W. Bush, to the Supreme Court.
The right-wing legal counterculture
As political scientist Steven Teles documents in his 2009 book The Rise of the Conservative Legal Movement, the Federalist Society is a fascinating case study in long-term institution-building by the American right. Founded by Reaganite students at elite law schools in 1982, the Federalist Society advocates no positions and submits no briefs. It organizes conferences and student chapters for libertarian and conservative legal types to talk to one another and sometimes debate progressives. By creating a network, it built up a right-wing legal counterculture. Of course, there have always been conservative lawyers, but when the Federalist Society was founded, there was little in the way of right-wing legal theory, especially in constitutional or administrative law. But since 1982, whole intellectual movements – law-and-economics, originalism, textualism, Thomist natural law thinking – have developed, been refined and to some extent migrated over to the progressive legal academy.
The political moment of this more ideological brand of right-wing lawyering arrived as a result of disappointment of conservative movement figures in results from Republican appointees. Eisenhower appointed both Chief Justice Earl Warren and liberal icon William Brennan. Nixon appointed the very conservative William Rehnquist, but also Harry Blackmun, author of the Roe v. Wade decision that created a constitutional right of access to abortion. George H.W. Bush appointed Clarence Thomas, who has proven to be more doctrinaire even than Scalia, but also David Souter, who quickly became aligned with the liberal wing of the court and who voted along with Blackmun, Kennedy and Sandra Day O’Connor (another Reagan appointee) to uphold Roe in the 1992 decision Casey v. Planned Parenthood. Casey was the final straw for conservative activists, who adopted the slogan “No More Souters” and broke with George W. Bush when he tried to appoint the insufficiently ideological Harriet Miers to the Court in 2005.
The result is that the American right has demanded ideological reliability, not just Republican partisanship. And, as Lenin and Gramsci realized long ago, this requires ideological institutions engaged in more abstract theorizing. Gorsuch is a hereditary conservative: his mother was an official in the Reagan administration and he is a product of the debates in the Federalist Society and similar circles. As a law professor at the University of Chicago, Scalia was an early mentor of the Federalist Society, and he undoubtedly had an outsize influence on the people who have gone through its ranks. But Scalia was fully formed intellectually before the Federalist Society began, as were Clarence Thomas and Samuel Alito. Chief Justice John Roberts is a lawyer’s lawyer, with an instrumental view of theory. It is widely speculated that he avoided ruling Obamacare unconstitutional because he did not want to embroil the Court, as an institution, in the no-win partisan disputes about health care.
Gorsuch differs from his predecessors in being a generational product of a much more theoretical culture on the legal right. This will likely mean both that he can be relied on from the conservative perspective, and that he will be able to put forward his perspective in a less acerbic way than Scalia. (It also means departure from Scalia’s stance of deferring to executive agencies when interpreting statutes, a position now unpopular on the legal right.) As is now traditional, Gorsuch did not say much that is substantive in his testimony before the Senate Justice Committee. As a court of appeal justice, his record showed he was a better than average writer, with results that were not unusual for a Republican appointee.
Commentators turned to his doctoral dissertation, The Right to Receive Assistance in Suicide and Euthanasia, which examined the issue from various perspectives including common law, constitutional law and contemporary moral philosophy. The dissertation is a solid if unremarkable academic work, addressing the arguments of pro-euthanasia thinkers like Peter Singer and Richard Posner without rancour or hyperbole. But it ends up with a conservative conclusion, defending traditional distinctions between foreseeably causing death with pain medication and deliberately causing it, or between a competent person dying by refusing hydration or treatment and active medical assistance.
Gorsuch’s thesis supervisor, Oxford legal philosopher John Finnis, is a leading exponent of a neo-Aristotelian natural law approach to legal and moral philosophy – ostensibly secular but definitely influenced by a tradition in Western philosophy that had a major impact on the moral theology of the Catholic Church. Gorsuch borrowed from this tradition the idea of human life as an “intrinsic good” that cannot be reduced to a utilitarian calculus or equated with a right of personal choice. While Gorsuch steered clear of abortion politics, and regarded Casey as authoritative, activists on both sides of the abortion debate clearly decided he would support overturning it if the opportunity arose, and he will probably vote like Scalia, while employing more measured rhetoric.
It should be said, though, that Aristotelian virtue ethics and natural law theory are not necessarily right-wing, and that consistent utilitarians and libertarians come to extremely unpopular and counterintuitive moral positions. Singer thinks it is wrong to eat meat or give your child birthday presents if the money could help save someone from malaria, while Posner guaranteed that he would never reach the U.S. Supreme Court by advocating auctioning off rights to adopt babies. This does not mean those positions are wrong (Jeremy Bentham counterintuitively opposed sodomy laws and slavery), but it should put some of the hyperventilating in context. The actually alarming thing is that it is important to dissect a dissertation in moral philosophy for clues about the future of public policy in a democracy of almost 300 million people. This is the consequence of the superempowerment of final courts of appeal.
The balance holds – for now
The immediate effect of Gorsuch’s nomination will not be huge. Anthony Kennedy will remain the median vote on the Supreme Court of the United States, as he has been since Sandra Day O’Connor retired in 2005. Since the ideological space between Kennedy and O’Connor is not that great, really the Court will remain where it has been since Gorsuch was a teenager. But the next death or retirement is likely to be either Kennedy or one of the Court’s liberals, in which case the balance could shift dramatically.
It is surely unfortunate that so much of significance to American public policy turns on actuarial accident. Too much that should be left to politics is judicialized. The inevitable result is that, once the most salient issues are decided by a Supreme Court, the law becomes hostage to politicization. Scalia’s answer to this was to find formalist approaches to adjudication that would transcend the judges’ own biases, but the actual result is that these approaches just become shibboleths for one political coalition and anathema for the other. The political debate is channelled into jurisprudential abstraction, but at the end of the day the judicial balance depends on the brass-knuckle politicking of senators like Mitch McConnell and Chuck Schumer.
Canada does not yet have the problem of polarization around judicial choice and our Supreme Court enjoys widespread acceptance, if not widespread understanding. But the same logic may eventually triumph here, since there is no greater sense in Canadian elite legal circles that the results in constitutional cases are independent of the ideologies and perspectives of the justices. This was exemplified by the questionnaire for Supreme Court of Canada appointment filled out by our most recently appointed justice, Malcolm Rowe, and published by the Trudeau government on the internet. Reflecting the academic consensus since the 1930s, Rowe stated quite frankly that “Supreme Court of Canada judges ordinarily make law, rather than applying it” and that the legitimacy of court decisions derived from the “wisdom and well-founded principles” of its judges.
The appointments of Justice Russell Brown in 2015 and Justice Rowe in 2016 both provoked a more ideologically polarized debate than we have been used to. We can hope that the United States is not the mirror of our future, but pessimism is probably the better way to bet.
1 A few examples of his votes that favoured the right include Thompson v. Oklahoma (1988) (Scalia dissenting would have upheld death penalty against teenager); Planned Parenthood v. Casey (1992) (Scalia dissenting would have upheld criminalization of abortion); Grutter v. Bollinger (2003) (Scalia dissenting would have declared affirmative action unconstitutional); Lawrence v. Texas (2003) (Scalia dissenting would have upheld criminalization of homosexual sex). Scalia concurred in all the major “right-wing” decisions of the Rehnquist and Roberts courts, including Bush v. Gore (2000) and Citizens United v. Federal Election Commission (2010) (striking down restraints on independent political expenditures by corporations). In terms of his exceptions, in Texas v. Johnson (1989), Scalia concurred in the decision written by liberal icon William Brennan. An example of his opposition to expanding the scope of criminal statutes is his dissent in Smith v. United States (1993) (Scalia refusing to extend “use” of a firearm to trading it in exchange for drugs) and of the defence of rights of criminal defendants his majority judgement in Kyllo v. United States, (2001) (use of heat detection device to find marijuana grow operations without a warrant unconstitutional).
2 The most sophisticated example of this critique is Cass Sunstein’s article/obituary “Antonin Scalia, Living Constitutionalist,” which appears in the forthcoming Harvard Law Review.
3 Antonin Scalia, “Originalism: The Lesser Evil,” 57 U. Cin. L. Rev. 849 (1989).
4 Cambridge, MA: Harvard University Press, 2011.
5 In addition to Lawrence, Scalia dissented from groundbreaking gay-rights decisions authored by Kennedy in Romer v. Evans (1996) (states cannot prevent local governments from banning discrimination based on sexual orientation), Windsor v. Evans (2013) (federal law not recognizing state sanctioned same sex marriages unconstitutional), Obergefell v. Hodges (2015) (Fourteenth Amendment requires states to recognize same sex marriage).