Domestic Affairs

After Dobbs: Why Progressives Should Embrace Textualism

One thing is clear — the second half of June 2022 was not a good one for progressives. In cases such as Dobbs V. Jackson, EPA V. West Virginia, McGrit V. Oklahoma, New York V. New York State Pistol and Rifle Association, Carson V. Makin, and Kennedy V. Bremerton School District, the Supreme Court handed conservatives major victories on abortion, the administrative state, states’ rights, Second Amendment rights, school choice, and religious freedom, respectively. In response to this, many progressives have argued that the court is “illegitimate” and that it ought to be restructured or abolished. Even progressives who would not go that far are still frustrated and angry. Whether it be through legislation, constitutional reform, or some other path, many progressives are looking for a way to reverse these losses. For those who want to keep the court intact but reduce its power over the nation’s politics, I have a proposal: 

If progressives want to protect themselves from decisions like these, they should work to limit the power and scope of the judiciary. 

To understand why, we need some context. Over the past centuries of American history, we have seen a vast expansion of judicial power. Starting in Marbury V. Madison, the court granted itself the power of judicial review — the power to declare laws unconstitutional, despite this power never appearing in the Constitution. Nonetheless, for the next 150 years, the court held a relatively minor role in our national politics. The court was so impotent that the first chief Justice, John Jay, resigned because he found the court lacking “energy, weight, [and] dignity” — not exactly a ringing endorsement. But then, things began to change. 

Some years later in 1953, President Eisenhower made what he, perhaps apocryphally, called “the biggest damn-fool mistake I ever made:” He nominated Earl Warren to the Supreme Court. Warren soon became a symbol of the rapidly expanding judicial activism. Over the coming decades, the court would shift from an originalist and textualist position to a belief in the “living Constitution,” meaning that the Constitution can change to reflect modern social norms. There were plenty of cases where the courts, under this judicial theory, made sweeping rulings to establish progressive policy in law, but none were more infamous than the late Roe V. Wade

In response, Conservatives launched, for lack of a better phrase, the textualist revolution. The movement, which began in earnest in the 1980s, was successful in influencing the judicial philosophies of even those more liberal justices. It was also quite successful at raising a new generation of young textualist judges, including Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, to name a few. While the current realignment of the court may feel sudden, it is anything but. For 50 plus years, the conservative right has been waging this war and winning. 

Of course, it would be suitably ironic if progressives launched their own legal movement which remade judicial philosophy, raised a generation of young legal minds shaped by this philosophy, and then made court appointments such an important intra-party issue that it would be the critical factor which unified the party in supporting an extremely divisive candidate. But if the textualist revolution is anything to go by, this new “revolution” would take several decades to effectively cultivate, and progressives don’t want to wait that long.

Another option would be for progressives to steal conservative thunder, declare themselves the true heirs of the textualist revolution and judicial restraint, and work to move policymaking away from the judicial branch and back to the legislative branch. Conservatives and progressives both accuse each other of legislating from the bench, but a move like this would allow progressives to claim the high ground in this dispute. The aim of this movement would be to limit the role of the judiciary in our politics and return lawmaking to the people’s representatives — a goal which naturally aligns with liberal ideology. Most of what progressives want from the court could be done through Congress; instead of seeking to reinstate Roe, for instance, they could seek to pass a reproductive rights bill. Rather than relying on government agencies, such as the EPA, to make policy, they should have Congress pass legislation setting whatever clean air regulations they want. Courts are generally more hesitant to rule on anything Congress does as unconstitutional than things done by a federal agency. While more difficult in the short run, if Democrats can rally the people around these bills, they would be far more sustainable in the long term. In some other cases, most prominently the praying coach and the NY gun case, it could take a Constitutional amendment altering the First and Second Amendments respectively to achieve victory, which is no small feat. However, in time, anything is possible. 

Beyond the specific issues themselves, progressives ought to embrace the philosophy of textualism as such: A Living Constitutionalism was all very well and good — for progressives — when the court was left leaning, but now that it is more conservative, any Living Constitutionalism the court embraces would likely be a Living Constitutionalism of the right

A conservative professor at Harvard Law, who is perhaps the ideology’s foremost proponent, describes right-wing Living Constitutionalism as “an approach—one might call it ‘common-good constitutionalism’ … based on the principles that government helps direct persons, associations, and society generally toward the common good… This approach should take as its starting point substantive moral principles that conduce to the common good, principles that… judges should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to ‘legislate morality.’”

Adopting a textualist position would provide an excellent philosophical position from which to reign in the power of the court. Textualist arguments for progressive causes have worked before, such as in the Bonstock case. Here, the court ruled, on textualist grounds, that civil rights law prohibiting discrimination on the basis of sex also covers discrimination on the basis of sexual orientation. 

More fundamentally, progressive ideology is, in some ways, naturally aligned with textualism. One of the most fundamental tenets of the progressive worldview is an awareness of power — a visceral understanding, often born out of personal experience, that it is not enjoyable when someone is in a position of power over you. It is especially so if you are in a group of people over whom another group of people systematically holds power. Having a court which can decide to do whatever it wants based on nebulous interpretations of social norms gives the court the power to force its personal biases and beliefs on the entire country. A textualist court, meanwhile, is constrained by the law. It can only rule based on what Congress and the Constitution rule, both of which are determined democratically. This will not get progressives everything they want, but, in a country as evenly divided as ours, there is no way for progressives or conservatives to get all of what they want while America is yet a republic. What textualism will do, however, is take power out of the hands of nine unelected, highly-privileged people and instead put it into the hands of those closer to ordinary Americans. 

There are several progressive arguments against this strategy. First, there is the idea that textualism is inherently biased towards the status quo and thus towards conservatism. This is true, as there is a lag time between popular opinion and the law, and there is an even longer lag time between popular opinion and the Constitution. However, this argument is true only if the government is moving in a leftward direction. If the government were to drift right, textualism would be a leftist force. But if society is drifting left at a steady enough rate for textualism to consistently be a rightwing force, then it is probably only a matter of time before Congress encodes whatever change is of consequence into law, or, if needs be, in the Constitution. The great thing about textualist judges is that if you don’t like their ruling, you can just change the text. And insofar as society does move to the right, progressives would be grateful for this real, albeit likely temporary, brake on conservative power. 

Another argument is that textualism is all very well and good philosophically, but the social costs of not using all tools available for progressive victory are high enough that it is worth ignoring. How can we care about something as esoteric as philosophy of law when the lives of millions of people (particularly, of course, women, people of color, LGBTQIA+ people, indigenous people, etc.) may be lost as a result of a single court decision? There are three problems with this line of thinking. First, at the most abstract level, this type of thinking is how institutions are corroded. This argument is based on the idea that temporary ends justify the means; that getting the “right” result, procedure be darned, is paramount. The point is not to rehash the age-old debate over whether ends justify means. However, if you believe in the principle that the ends do not justify the means, then you should be leery of an argument which urges you to disregard laws and norms for a supposedly greater cause. Once you erode institutions for your own goals, nothing stops the other side from doing the same when they take power. This is why Biden has not yet packed the Supreme Court.

Second, corroding textualism will, in the long run, leave disadvantaged groups more vulnerable to the whims of those in power. Every time progressive judges undermine textualism, they give the right a little more license to do the same. And there is a growing movement on the right to do exactly that. Strengthening textualism may lead to some short term losses on individual cases such as Dobbs (where the clear meaning of the constitutional text precluded the progressive argument for an explicit constitutional right to access to abortion). Assuming the general accuracy of the rest of the progressive worldview, that very well may end up hurting many people. But the more support progressives give to textualism, the stronger it will become, and the more the right will be bound by it as well. 

Finally, making sweeping rulings rooted in a living constitutionalist framework is a plain strategic mistake, as the case of Roe ought to demonstrate. Ruth Bader Ginsberg herself stated, “My criticism of Roe is that it seemed to have stopped the momentum on the side of change.” She fleshed this out in a speech, saying, “The seven to two judgment in Roe v. Wade declared ‘violative of the Due Process Clause of the Fourteenth Amendment’ a Texas criminal abortion statute that intolerably shackled a woman’s autonomy; the Texas law ‘except[ed] from criminality only a life-saving procedure on behalf of the [pregnant woman].’ Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the twenty-year controversy we have witnessed, reflected most recently in the Supreme Court’s splintered decision in Planned Parenthood v. Casey? A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe and will summarize why, might have served to reduce rather than to fuel controversy.”

If it were not for Roe, the conservative legal movement would have never happened. Abortion law would have been left to the democratic branches of government, and we would likely have ended up with abortion regulations like Europe, where abortion is generally allowed in the first trimester, and in the second trimester with cause. Instead, Roe energized and united Republicans, especially in critical moments of party division like 2016. This was all in exchange for a temporary victory in Roe, which is now all but lost to the left.

A third objection to a progressive embrace of textualism is that it is unworkable. Strict adherence to the text of the law, let alone the Constitution, is not always possible. Sometimes the text is unclear or has absurd results which the authors obviously did not intend. This is true; being a perfect textualist is impossible, and some judgments will always be required. It is impossible to carry out any philosophy perfectly consistently, but for the reasons described above, I still think textualism is the best target to aim for. 

A fourth and (I promise) final objection is that the entire premise of my argument equates textualism with judicial restraint, when they are by no means isomorphic. This is true, but textualism does, in the end, lead to judicial restraint, as it keeps the courts bound to the decisions of the elected branches of government. There are, however, other philosophies which also promote judicial restraint. One such is a commitment to stare decisis, the legal principle that the court should stick within its precedent. Needless to say this is very important, and is affirmed by textualist and living constitutionalist judges alike. However, embracing this as a final legal philosophy would create difficulties, in that it prevents a court from correcting a past error. Indeed, many of the court’s most radical moves have been textualist, even as they threw stare decisis to the wind. Brown V. Board of Education, while obviously rooted in a textualist reading of the Fourteenth Amendment, was a radical judicial move precisely because it violated stare decisis. However, such a radical move would never have been necessary had Plessy V. Ferguson not abandoned textualism for the sake of conforming to the social mores of the time. Wherever you find a radical textualist decision, it is almost always a reversal of a radical non-textualist decision. 

What would a progressive embrace of textualism actually look like? While there are plenty of ways it could be designed, I have a few proposals. First, a progressive counterpart to the Federalist Society could be created. It would still be textualist, but its goal would be to find young progressive lawyers, shape them into progressive textualists, and have a stockpile of them ready for whenever a Democratic president had to fill a vacancy. Second, progressive lawyers should start relying on textualist arguments in judicial proceedings, which means, of course, creating their laws, policies, and regulations in such a way that they can be defended textually. Third, progressive academics at law schools and in philosophy of law positions should work on fleshing out progressive textualism by using their cultural power to promote it to the rest of the movement, the Democratic party, and society at large. 

Finally, if and when there is once more a liberal majority on the Supreme Court, progressives should not seek to recodify Roe. Nor should they seek to enact any other major social change through the courts. Rather, if progressives want to guarantee the right to abortion nationally, they should go through Congress. I may not personally agree with this policy proposal, but I believe that a situation in which Congress has passed reproductive rights legislation is more stable, and better for America, than one in which these same rights are enforced by a court in the way of Roe.

Many of you might be wondering why I, a conservative, am writing to advise progressives on how to achieve success within their policies. The reason is that, while today the court is conservative, it has not always been so, and there will come a time when it is once again more liberal leaning. When that time comes, I want as restrained a court as possible. Ideally, we could create a court so textualist and constrained that it ceases to be a political institution at all, and justices are confirmed with as little fanfare and as much bipartisanship as a mid level political appointee to the State Department. Anyone who cares for liberty and justice, conservatives and progressives alike, has a common interest in establishing a neutral, rule-bound court. Hopefully, this current string of losses will help progressives see this, and act accordingly. 

I know, viscerally, what it is like to live under a regime with values hostile to my own, and I do not wish that on anyone. Hopefully, we can together build a world where no one has to go through that experience, one philosophy of law debate at a time. If you want to imagine what the alternative is like, imagine the courts being able to make decisions that make you feel like these ones did, with no check on their power, forever.

Categories: Domestic Affairs

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s