Adam J. White on divisions within the US conservative legal movement
US Editor Guy Denton talks to Adam J. White on the US conservative legal movement.
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The Constitution of the United States forms the heart of American conservatism. For conservatives, the document is to be understood today as it was at the time of its ratification. This view, known as originalism, holds that the Constitution is simply silent on many issues, and that it can only be altered to address those issues through the amendment procedure.
Progressives, meanwhile, view the Constitution as a living document that must change in meaning to reflect evolving social mores. As this view has become increasingly prominent, Supreme Court justices have been empowered to contort the text of the Constitution. They have usurped the political role of the legislature by inventing new constitutional rules and distorting old ones. This activist approach to adjudication is antithetical to the judicial restraint preferred by conservatives.
Even indifferent foreign observers will have been struck by the vituperative battles that have occurred in recent years over the appointments of particular justices to the Supreme Court, most notably Brett Kavanaugh and Amy Coney Barrett. To explore the state of both the conservative legal movement and the Supreme Court as an institution, I spoke to Adam J. White, a resident scholar at the American Enterprise Institute and assistant professor of law at George Mason University's Antonin Scalia Law School. Our dialogue also considered the future of American constitutional government.
Guy Denton (G. D.): Why is there a conservative legal movement in the United States, and what does it exist to protect?
Adam White (A. W.): The conservative legal movement arose in the 1980s, in response to prior decades' increasingly leftward trends in judicial power. Under Chief Justice Earl Warren, the Supreme Court undertook an increasingly activist approach to constitutional law: broadly announcing 'rights' far disconnected from the Constitution's precise text, and limiting states' scope of policymaking discretion. The most famous and controversial example was Roe v. Wade, which announced a broad right to abortion, limiting the states' longstanding powers to regulate or prohibit abortion.
Beginning around 1976's bicentennial celebrations, Americans' renewed appreciation of the founding generation energised conservative and libertarian scholars to re-anchor constitutional law in the Constitution's original meaning, as a way to limit judicial power; soon after, it came into full bloom during the Reagan Administration, thanks to the efforts of Attorney General Ed Meese and the appointment of Justice Antonin Scalia.
Decades later, originalism and textualism have become predominant in the federal courts, thanks to judges appointed by Presidents Reagan, Bush, Bush Jr., and Trump. But in its success, the conservative legal movement increasingly shows divisions of its own, among different groups of conservatives and libertarians.
G. D.: To what extent is the rabid polarisation that pervades American life affecting the Supreme Court?
A. W.: Polarisation certainly colours the public's perceptions of the Court, but it's not clear that polarisation actually affects the Court's own work. Much of the Court's cases are decided with consensus across the justices' ideological lines; the five-four decisions attract the most attention but are only a small portion of the justices' total work.
G. D.: Is it appropriate to characterise Supreme Court justices as conservative or progressive, or do we require a more sophisticated vocabulary?
A. W.: I don't think it is unfair to characterise them along those lines. While 'conservative' is a complicated category in American politics, its meaning is much narrower in American law: conservative means, generally, originalist and textualist. The Court's six 'conservative' justices fundamentally agree in their basic commitments to textualism and originalism; they differ in details, but they agree basically on the premises of their work.
Perhaps it would be better and more accurate to define more specific categories —conservative or libertarian; judicial restraint or unrestraint; pro- or anti-precedent — but at the highest level of generality the basic conservative/progressive line is a good start.
G. D.: For how long has judicial activism been a threat? Can it only be tempered through the appointment of originalist justices?
A. W.: The federal courts have played a significant role in American government and politics since practically the beginning. The greatest chief justice, John Marshall, wrote opinions in the early 1800s that helped to shape and reinforce the young federal government’s national powers. I do not think he was a judicial activist, but his critics certainly did.
What we now think of judicial activism started in the 1960s, though there were examples of it (from libertarian judges) in the early twentieth century, and other examples still earlier.
In the end, the problem of judicial activism reflects the timeless difficulty of judicial power in constitutional government. We want judges to be a bulwark against unconstitutional actions by the other parts of government, but in giving judges the independence necessary to play that role we also make it more difficult to restrain them — or to convince them to restrain themselves.
Originalism, at its best, restrains judges — but only so long as those judges commit themselves to being restrained by originalism.
G. D.: Can a conservative case be made for imposing term limits on Supreme Court justices?
A. W.: Increasingly, yes. I am wary of any tinkering with the Constitution — after all, I'm a conservative — but Supreme Court appointments have taken on far more political weight than the founding generation ever could have imagined.
When a judge is expected to serve thirty-plus years on the Court, then each of the Court's nine seats becomes extremely valuable political real estate, and the vacancy of one of those seats sparks the political equivalent of total war.
Amending the Constitution to give each justice an 18-year term would held to make Supreme Court appointments much more common, with lower stakes. It would also create new problems — e.g., the market for retired Supreme Court justices, at law firms or arbitration firms, would become so lucrative that it might affect the judges' work — but we should at least consider the change's merits.
G. D.: Senate confirmation hearings for Supreme Court justices can be unpleasant affairs. Why should they be retained?
A. W.: We tend to think of the confirmation hearings at their worst. I would not pretend that they aren't often awful. But each confirmation hearing is an opportunity for the nation to pause and think, if only for a week, about what it means to have a constitution and a Supreme Court. The nominee is able to explain his or her approach, and Senators can ask questions — sometimes they even ask great questions. In republican government, these are indispensable things.
G. D.: What is the greatest challenge currently facing America’s constitutional framework?
A. W.: The greatest challenge is the lack of self-restraint. We have grown accustomed to thinking that the system of checks and balances takes care of itself — that ambition counteracts ambition, as James Madison wrote. But Madison and his colleagues recognised that this system presumed certain republican virtues, without which the constitutional system would destroy itself — like an engine without oil.
The constitutional framework doesn't create the virtues necessary to sustain it; those things come from education, religion, civic institutions, and the examples of statesmen. We are running dangerously dry of them.
G. D.: Ultimately, are you optimistic about the future of the Supreme Court as an institution?
A. W.: Definitely. The current set of nine justices are of particularly high quality — not just the Court's originalists, but also progressive justices like Elena Kagan — and that trend seems likely to continue in the years ahead, under Democratic and Republican presidents alike.
Furthermore, while I disagree with some of John Roberts's judicial opinions, I think that he is proving to be a genuinely great chief justice, in no small part because of his understanding of the Court’s unique historical role in our constitutional government.
When he retires, he may well deserve to be discussed among some of the most significant chief justices: Taft, Hughes, and Warren.
No one will rival John Marshall as 'the great chief justice', but Roberts likely will deserve to be included among the next tier, which is no small achievement.
