The Corner

Law & the Courts

Why Conservative Opinions Are Weird

Supreme Court justices Neil Gorsuch and Brett Kavanaugh at the Capitol in Washington, D.C. February 5, 2019. (Doug Mills/Pool via Reuters)

There will be much good and astringent commentary on today’s Supreme Court decision striking down Louisiana’s modest attempts to regulate abortion clinics like any other medical provider.

But one of the most bracing was written by Jesse Merriam before the decision came down. Over at Law and Liberty, Merriam holds that “the [conservative legal] movement never worked out its arbitration between the tugs of substance and form. The legal conservative movement was initially organized around substantive opposition against the Warren Court. But legal conservatives used the language of form to address those substantive concerns.”

That is, the Left has a substantive view of equality. The Right opposes that vision substantively, but the conservative legal movement only tries to do so indirectly. Instead of reasoning that abortion is totally unjust and violates something like the 14th Amendment, conservative jurists do their part by restoring culture-war questions to democratic institutions like legislatures (which do not want them).

I think this mismatch is why conservative or “moderate Republican” opinions on the controversial culture-war stuff are often the strangest opinions to read.

For a good long time now, rulings by Justices Breyer or Ginsburg read rather straightforwardly, even for those who don’t like them. They have a substantial view of justice in mind — call it Equality. And they move from the particulars of the Supreme Court case in front of them, to other cases that contain mere glimpses and foreshadowings of the full-flowered progressive view they will enshrine and expand in their current ruling. They aren’t short of examples because they are drawing on other jurists who put this substantive view of justice into their rulings. They go beyond the text of the statutes but not beyond their principles.

By contrast, it’s the conservatives who don’t just give us surprise rulings, but surprise reasonings. Two weeks ago, we had Gorsuch’s deeply weird argument that sexual orientation and gender identity discrimination are just sub-species of discrimination based on sex, therefore we can credit President Johnson with forbidding discrimination against Caitlyn Jenner. Or John Roberts’s opinion this morning, investing a Burkean respect of the ancient in a precedent he rejected as spurious just three years ago. Or there was his previous opinion that just flatly rewrote Obamacare’s penalties as taxes.

Roberts is said to always be acting to defend the Court’s reputation. But it’s precisely these strange and arbitrary applications of precedent and bald attempts at rewriting history that give credit to the sophists in our commentariat and universities that all invocations of principle are merely self-interested “discourses of power.”

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