As Politico reports, Neil Gorsuch on Thursday night delivered a victory lap speech at the annual conference of the Federalist Society. The article tells us that Gorusch’s big applause lines concerned his:
- Snide reproach to those who characterize the Federalist Society as a secret cabal scheming in darkness to infiltrate and control the federal judiciary; and
- Full-throated and triumphant affirmation of originalist and textualist judicial philosophies the Federalist Society and legal conservatives support as articles of faith.
Let’s consider these remarks in turn.
The Secret Cabal
This is what Gorsuch said. “If you’re going to have a meeting of a secret organization, maybe don’t have it in the middle of Union Station and then tell everybody to wear a black tie. It’s not a shadowy cabal in need of Joe McCarthy.”
Here’s the thing. No one believes the Federalist Society is a shadowy cabal. While not a large organization compared to its right-wing big brother, the Heritage Foundation, The Federalist Society is enormously well-funded and well-organized. One could infer the organization schemes and acts under cover of darkness, given its lack of emphasis on publishing research. However, the Federalist Society’s explicit mission has for decades been to function as an “activist” organization, with the clearly stated aims of:
- Recruiting law students to its values, methods, goals, and practices; and
- Packing the federal court system with its acolytes.
Gorsuch’s remark is therefore a disingenuous red herring, but one fully consistent with the feckless line the Federalist Society has fed its suppoters and backers for years – that we’re small, beleaguered, disparaged, and maligned / but plucky, feisty, principled, and courageous.
Originalist and Textualist Judicial Philosophies
This is what Gorsuch said. “The duty of a judge is to say what the law is not what it should be. Tonight I can report, a person can be both a committed originalist and textualist and be confirmed to the Supreme Court of the United States. Originalism has regained its place and textualism has triumphed and neither is going anywhere on my watch.”
Several points here.
- As Gorsuch well knows, the distinction between what the law is and what it should be is not binary, but subject to gradations of ambiguity, nuance, and consequence. His statement about the duties of judges is therefore rhetorical and ideological, not substantive and meaningful, and more significantly relevant as an ahtorical rendering of the Constitution as revealed religion.
- Originalism and textualism have likewise become ideological shibboleths freighted with meaning for those initiated to their mysteries. Federalist Society luminaries will tell us judicial review does not need knowledge or guidance assembled from legal precedent, legislative history, social science, natural science, or data science. Judicial review requires only the inert words captured in a small, fixed, and dated set of canonical “founding” texts (Declaration of Independence, Constitution, Federalist Papers, etc.). These “original” texts are a Procrustean bed, a Solomonic, incontrovertible measuring stick, no matter how anachronistically ill-equipped they may be for comprehending and adjudicating the most pressing matters and challenges of our time. Hence, legal conservatives suc as Gorsuch will writhe around the unanswerable and possibly irrelevant question: What did this clause of the Constitution mean to the Founders? One might reasonably ask in return: Why not closely inspect entrails?
- Gorsuch’s preening and strutting bombast reflects, generally, the triumphalist swagger of The Federalist Society, which for the past three decades has viewed itself as a government-in-waiting, now fully ascendant, and not in the least bit troubled by the need to saddle and mount the rampaging, caterwauling, bucking bronco they once swore never to ride.