In the four decades since the founding of the Federalist Society in 1982, the conservative legal movement has made great strides in recasting the federal and state judiciaries in its image.
The Society is enormously popular on leading law-school campuses and has sent many of its leading lights into the federal judiciary. Numerous sitting Republican senators, some of them former Supreme Court clerks, came up through the Society’s ranks. Perhaps most remarkable, given the Society’s humble origins, five justices, the majority of the sitting Supreme Court, would identify as some sort of constitutional “originalist.”
Yet despite these marches through the institutions, conservatives — social and traditionalist conservatives, in particular — have never been less at ease with the current state of the “conservative legal movement.” That tension was highlighted in the aftermath of Trump-appointed justice Neil Gorsuch’s turncoat performance in the 2020 Title VII case of Bostock v. Clayton County. The case, in which a majority ruled that Civil Rights Act protections applied in instances of gay and transgender discrimination, prompted Missouri senator Josh Hawley to pronounce “the end of the conservative legal movement, or the conservative legal project, as we know it.” Subsequently I published an essay in the Harvard Journal of Law & Public Policy proposing that the right adopt a jurisprudence of “common good originalism.” And Harvard law professor Adrian Vermeule has published a new book on “common good constitutionalism.”
What gives? Despite the aforementioned institutional and methodological successes, a sober, empirical assessment of the past four decades paints an ambiguous picture of substantive conservative success in US courthouses. It is simply not obvious how many true doctrinal victories conservatives might be able to claim have emerged from the conservative legal movement’s credentialing pipeline. Some areas, such as gun rights, stand out. In other “culture war” areas, such as religious liberty, we have played to a draw (though we cannot seem to go further). On foundational issues that helped galvanize the Federalist Society’s founders, such as abortion, legal conservatives have (to date) been famously unsuccessful. On even abstruse libertarian-centric issues, such as the administrative law bugaboo of “Chevron deference,” the movement has not delivered.
By now, it should be obvious: spouting platitudes about the various stripes of liberal proceduralism is simply not enough. Given the current morass — and against the powerful upstream currents of condescension and scorn from those dutiful foot soldiers who would plead “Give us one more justice!” — creative thinking is required from the younger generation of legal conservatives.
Structurally, curricular reform in the legal academy is desperately needed — legal education must be reoriented toward the Bible, natural and Roman law, and the other substantive precepts underpinning the English common-law tradition. And the libertarians must step aside. Now is not the time for libertinism and radical individualism, but for consolidation and communitarianism. The time is now for a political economy of “common good capitalism” and its natural jurisprudential corollary, common-good originalism. Only by recovering the substantively informed, “morally thick,” more nationalist jurisprudence of Alexander Hamilton, John Marshall and Joseph Story will we decisively right the “conservative legal movement” ship, forestalling insidious future libertarian encroachment and delivering results for our fellow conservative “deplorables.”
Josh Hammer is opinion editor at Newsweek. This article is one excerpt from “Fight for the right,” a symposium on the future of American conservatism. Read the full series here.
