Gorsuch Victory Lap Speech at the Federalist Society: Some Correctives

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.

Roy Moore and the Horse He Rode in On: Revealed Religion and Natural Law in the Alabama Senate Race

In August, former (twice!) Alabama state Supreme Court Chief Justice Roy Moore (with a rich symbolism perhaps not fully appreciated) rode his horse Sassy into the unincorporated town of Gallant (population 850, also known as Greasy Cove) to cast a ballot for himself as the Republican nominee for the Senate seat vacated by Jeff Sessions.

In the wake of a backlash against “DC swamp” candidate Luther Strange, Moore coasted to a win over nine other candidates, and then trounced (the geographically vast, awesomely named) Strange in a late-September run-off primary. As Senator, Moore has promised to restore Christianity to the Capitol and fight the rise of Islamic “Sharia law” in the United States.

Even without the recent revelations of Moore’s sexual trolling of teenage girls when he was in his 30s, it’s obvioulsy tempting to linger on the incredible Gothic theatricality of this entire special election cycle (for example, the mixed metaphors of “the swamp” as the habitation of the “silk-stockinged elite“). But for our purposes, we need initially only pay attention to Moore’s deranged, megalomaniacal Constitutional rants, which begin with the Bible, linger around themes such as God’s desire for families to keep loaded guns at home to protect their children, and end with the natural law gymnastics of early 19th-century Supreme Court Justice Joseph Story.

Moore’s jurisprudence and politics fully conform to the conservative commitment to natural law as a gift and instrument of God via revelation. “I’m not a politician. I don’t like politics,” Moore told a gathering of elderly white folks at Mr. Fang’s Chinese Restaurant on the night before the primary vote. “It’s what God has done through me.”

In a conversation that evening with Jeff Stein of Vox, Moore emphasized, repeatedly, “You have to understand what religion is — the duties you owe to the creator.” According to Moore, Justice Story, one of the most highly regarded jurists of the early Republic who in recent years has become, somewhat surprisingly, a fan favorite of legal conservatives and natural law enthusiasts, supported and refined the view that the duty of the Constitution and the First Amendment was to “foster religion and foster Christianity.”

Here, Roy Moore parses a view of religious liberty consistent with the precepts of Robby George, the Acton Institute, and other conservative Christians for whom conscience becomes the principled basis for ignoring legislation, regulation, and court decisions of the federal government with which they disagree on the basis of the “self-evident” precepts of natural law. Of course, this parsing has long formed the hallmark of Roy Moore as a jurist, with his placement of the stone tablets of the Decalogue in the Alabama state courthouse and his refusal to enforce the marriage equality ruling of the U.S. Supreme Court (with helpful cover from Antonin Scalia’s high court dissent and full-throated support from Robby George).

Roy Moore, quoting from Joseph Story’s Commentaries on the Constitution, has for several decades been instructing us that “the rights of conscience are beyond the reach of any human power; they are given by God and cannot be encroached on by any human authority without a criminal disobedience of the precepts of natural or revealed religion.” On Senate primary election night, with a flourish characteristic of the natural law synthesis initially formulated by Aquinas, Moore concluded, “We need to go back to the recognition that God’s hand is still on this country and on this campaign. We must be good again before we can be great. And we will never be good without God.”

Christian-conservative jurists and philosophers will often invoke Abraham Lincoln’s response to the Dred Scott decision as the ultimate defense of conscience in response to judicial overreach. In reality, these appeals to conscience and religious liberty are, like patriotism, a last refuge of scoundrels. Arguments on behalf of conscience, natural law, and higher law – whether voiced by Antonin Scalia, Robby George, or Roy Moore – mask a theocratically minded support for states’ rights that both dissolves the foundations of nationhood and obliterates the rights of conscience when they fail the arbitrary test of Biblical authenticity.

 

Latest Alabama Poll: Doug Jones Ahead of Roy Moore by 8 Points (November 16, 2017)

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A mid-October Fox News poll indicated a voter tie between Roy Moore and Doug Jones, with 42 percent favoring each of the 2 Senate candidates. The most recent Fox News, from a likely voter survey conducted between November 13 and November 15, shows Moore holding steady at 42 percent, but Doug Jones’s support increasing to 50 percent, with only 8 percent of those surveyed undecided.

Here are some additional data points:

  • Demographics.
    • Age.
      • Under 45: Jones 61% / Moore 30%.
      • 45 and over: Jones 44% / Moore 48%.
    • Gender.
      • Males: Jones 41% / Moore 53%.
      • Females: Jones 58% / Moore 32%.
    • Race.
      • Whites with college degree: Jones 44% / Moore 49%.
      • Whites without college degree: Jones 29% / Moore 64%.
      • Whites who identify as evangelical Christians: Jones 20% / Moore 73%.
  • Approval.
    • Doug Jones: 53% favorable / 33% unfavorable.
    • Jeff Sessions: 51% favorable / 40% unfavorable.
    • Roy Moore: 43% favorable / 50% unfavorable.
    • Luther Strange: 37% / 54% unfavorable.

These numbers are probably not stable. The salacious sexual misadventures of the powerful American male, whether pecadillo or predation, has amplified the emotional volatility of voters in the current polarized political environment. The Al Franken groping stories, while to this point a misdemeanor in comparison to the felonious nature of the allegations against Moore, may swing whipsawed Alabama voters back toward Moore by allowing them to retreat to the “everyone does it” argument. The variable that most warrants focus will be the impact of cascading revelations across both parties on female voters in Alabama, who may find it more difficult to forgive Roy Moore just because a prominent Democrat has also been charged with violating sexual boundaries.