A Philosophy of Expedience

The Left’s jurisprudence is whatever sounds good politically.

John O. McGinnisJune 11, 2018

Judicial appointments have proved the most successful aspect of the Trump presidency. Neil Gorsuch has begun where Antonin Scalia left off—as a committed originalist and eloquent textualist. Twenty-one appellate justices have been confirmed, a record at this point in a modern President’s term. And, like Gorsuch, these appointees have been schooled in formalist methodologies of judging. Confident of and committed to their judicial philosophy, they will not shift leftward, as have many Republican appointees in the past. These judges are the fruit of institutions like the Federalist Society and of the work of scholars who have carefully formulated the ideas of originalism and textualism. The Left is enraged because the Trump judges will leave their mark for at least a generation. Thus a group, Demand Justice, has been formed to spend millions to assail the Trump appointees and tout progressive judges for the future.

But however much money they spend, judicial progressives face an existential difficulty: the Left has no philosophy of jurisprudence to compete with originalism. Yes, progressives embrace a familiar set of specific legal positions tied to their agenda. They believe that Citizens United—the case that gave corporations the same right to speak at election time as the media—is an abomination. They believe that the Constitution’s enumeration of powers does not prevent the federal government from regulating anything that it wants to regulate. They believe that progressive programs, be they Obamacare or antidiscrimination law, should never yield to claims of religious liberty, and that discrimination is generally fine, so long as it favors minorities—and majorities, too, as long as those are women.......To Read More.......