Arch-Conservative Law Professor Starting To Suspect Conservative Legal Movement Just A Bunch Of Pseudo-Law Made Up For Partisan Goals
Adrian Vermeule is shocked, SHOCKED to learn the conservative legal movement was a baseless, cynical power grab all along.
A broken clock is right twice a doomsday, I suppose.
After a ground-breaking Supreme Court Term eviscerating precedent and cementing novel legal theories invented from whole cloth in my own lifetime, many see the “conservative legal movement” triumphant. But Harvard Law School’s arch-conservative Adrian Vermeule took to the Washington Post to throw some water on that opinion.
Rather than the triumph of conservative legal thought, Vermeule is left wondering what the “conservative legal movement” even means:
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But that framing rests on an error: In reality, as this case [West Virginia v. EPA] makes clear, there is no conservative legal movement, at least if legal conservatism is defined by jurisprudential methods rather than a collection of results.
Yeah… well, that’s not wrong.
He’s just pointing out what everyone (a) not in on the grift or (b) possessed of two working brain cells has said since at least the 1980s. But Vermeule is now starting to actually question the course of the movement he’s danced with for decades. It’s cute the same way you enjoy watching a child say, “Hey, I don’t think any of those three cards are 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 for interpreting legal texts. Conservative jurisprudence — again, as advertised — has 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 lauded in the opinions of conservative justices.
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The use of the phrase “as advertised” is almost tragically on point. Conservative legal theory is and has always been a public relations campaign designed to dupe ordinary folks into thinking radical judicial activism is ordained by some connection to mythologized and infallible Framers. But at all times the movement’s lodestone remained “whatever aligned with the policy preferences of the contemporary Republican Party.”
When semantic games got there, it’s a highly stylized brand of “textualism.” Failing that, it beckoned to a cherry-picked account of the “original public meaning at the Founding.” When the history of the Founding proved inconvenient, they started — basically only for gun laws — reconfiguring originalism around the public meaning four score and seven years after the fact. Consistency is the hobgoblin of honest actors, and the conservative legal movement jettisoned those folks years ago for getting high on their own supply and actually believing this stuff.
But grounding the partisanship in a theory that sounds superficially reasonable bestowed a quasi-apolitical shield.
To Vermeule’s credit he’s been complaining about the conservative legal movement for a while now. Though from his perspective, the big problem is that concepts like originalism aren’t compatible with his integralist worldview that the United States should junk the Constitution in favor of “the eventual formation of the Empire of Our Lady of Guadalupe, and ultimately the world government required by natural law.” Basically a transnational government of vaguely Catholic authoritarianism.
Which makes this jeremiad kind of rich: a guy who publicly dumps on originalism as an inconvenience on the road to theocracy is suddenly annoyed that conservatives don’t seem moored to originalism?
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So what’s going on here?
If there is no conservative legal movement, what is there? The answer is not mysterious: There is a libertarian legal movement, a consistent opponent of federal regulation, supported and rationalized by an entrenched network of richly funded, quasi-academic and advocacy institutions — in essence, a resurrection of the Liberty League of the 1930s.
Ah, the Court hiding beneath all these artificial theories is simply too libertarian!
Frankly, it’s impossible to watch the Supreme Court write the Establishment Clause out of existence and think that’s the result of a libertarian legal movement. Barry Goldwater, America’s proto-libertarian was outspokenly pro-choice and yet we got Dobbs, an opinion so steeped in pre-Founding traditionalism that it cited witch hunters approvingly. These are the opinions that lay the groundwork for Vermeule’s preferred order.
But originalism and textualism are conceits pliable enough to open the door to religio-fascism, but also invite too much “championing the individual” to the party to reliably get all the way there.
Unless he’s wildly naive, Vermeule isn’t really offended that this Court treats established conservative legal theories as playthings as much as he sees an opening to pierce the apolitical veil protecting jurists he considers too libertarian. And if accepted legal theories are a mirage wielded by right-wingers who don’t really appreciate a good auto-da-fé, maybe this is a chance for conservatives to try his own “common-good constitutionalism” on for size. It’s just as intellectually bankrupt but it’s just a little harder to be one of those RINOs justifying heliocentrism!
Because I’m not buying that the guy who titles his works “Beyond Originalism” is really shedding tears that the Court isn’t appropriately deferential to original public meaning and no one else should either.
But Vermeule’s specifically writing for the audience that bought into originalism in the first place, so he knows he’s got a bunch of easy marks.
There is no conservative legal movement [Washington Post]
Earlier: Hey, Can Someone At Harvard Law School Check In On Adrian Vermeule?
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
