How to Recover Conservative Judging

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This essay is part of an ongoing partnership between Law & Liberty and the James Wilson Institute on Natural Rights and the American Founding. Essays in this series explore the rich interplay among law, governance, and political philosophy.

Conservative jurisprudence is at a crossroads.1Thanks to Garrett Snedeker for your thoughtful review.

One path wanders from our history and traditions. Our originalist arguments beat back living constitutionalism, but they have led us away from the core method of American legal reasoning. They have distanced legal conservativism from the well-worn ways of American jurisprudence. By brandishing the centrality of text, conservative jurists sought to constrict the aggrandizement of the New Deal Court and weed out the inventions of the Warren Court. But these victories track a collision course with our abiding philosophical enemy—legal realism. We tacitly accepted the core tenants of that modern heresy: that judges make law, that they do so purely on policy grounds, and that only written law can constrain them. Like a puzzle piece that no longer fit, we cast aside the common law tradition.

It doesn’t have to be this way. There is another path, one paved with traditionalism, economics, constitutionalism, and moral reasoning. It leads to a holistic conservative jurisprudence. Along the way, legal conservatives will encounter pitfalls and obstacles: questions about the judicial role, the separation of powers, and morality. But arriving at a jurisprudence for the common good—not the meandering esoterica of legal elites—means starting back towards the right direction. 

This Feature begins by discussing four movements in conservative legal thought. It then asks why some have fallen by the wayside. It picks up on a trail we’ve forgotten: our traditions of common law reasoning, in which conservative legal philosophy can flourish. It closes with a roadmap for nationwide legal reform that begins with our state courts. 

Traditionalism

Start with the first movement2The categorization here differs somewhat from the one made famous in Michael W. McConnell, Four Faces of Conservative Legal Thought, 34 L. SCH. RECORD 12 (1988) (describing the four faces as traditionalism, libertarianism, economics, and social conservatism).—that disposition running from Burke to Kirk called traditionalism.3 Marc O. DeGirolami, The Traditions of American Constitutional Law, 95 Notre Dame L. Rev.1123, 1125 (2020) (“Traditionalist interpretation focuses on practices, rather than abstract principles or general tests, as constituting constitutional meaning.”); Whether from ambition, avarice, or arrogance, humans often try to remake the world to conform to our ideal vision. But revolutionary rationalism disrespects the debt that the dead have against the living; it impoverishes the patrimony of our posterity; and it upends the unspoken covenant between the dead, the living, and the millions yet unborn. The enemy of this hubris is traditionalism, which accepts what is good in our prejudices, counsels incrementalism, and allows us aggregate wisdom and build our culture on firm foundations. It calls for a legal method that renders the content of law intergenerationally intelligible through the conservation of legal reasoning.

Law and Economics

Law and Economics require less introduction; it has been one of the major battlegrounds in private law.4 For a brief introduction, see, Richard A. Posner, Values and Consequences: An Introduction to Economic Analysis of Law, (Coase-Sandor Institute for Law & Economics Working Paper No. 53, 1998).  This school applies the principles of economics to the development of law so that the rules for governing disputes are wealth maximizing. It calls for judicial scrutiny of rent-seeking behaviors and class legislation. And it defends the unplanned development of private spheres of order. Economic thought provides tools for legal analysis that allow courts to identify and eliminate avenues for corruption in government, thus upholding the promise of republican equality under law.

Constitutionalism

Constitutionalism encompasses theories for allocating power and analyzing its proper deployment within our federal republic, especially for judicial interpretation of written constitutions and statutes. In an era of written constitutions, constitutionalism begins with a theory of interpretation. Consequently, originalism and textualism have become the lingua franca of the conservative legal movement.5 For a discussion of originalism’s influence, see Teles, supra note 8. For discussion of originalism in its various forms, see, e.g.,Edward Meese III, Attorney General of the United States, Speech to the American Bar Association (July 9, 1985), available at, https://www.justice.gov/sites/default/files/ag/legacy/2011/08/23/07-09-1985.pdf; Randy E. Barnett, An Originalism for Non-Originalists, 45 Loy. L. Rev. 611 (1999); William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349 (2015); Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971); John O. McGinnis & Michael Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction, 103 Nw. Univ. L. Rev. 751 (2009); ); Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. & Pub. Pol’y 811 (2015); Keith E. Whittington, The New Originalism, 2 Geo. J.L. & Pub. Pol’y 599 (2004) Both theories rely on background constitutional principles—federalism, the separation of powers, sovereignty, and the canons of reason and language. Pre-existing legal understandings, like the nature of our Union, inform the genre of the Constitution and influence its interpretation. Thus, Founding-era debates focus on what kind of Constitution we have—not merely on what the constitutional text says.6See Farah Peterson, Expounding the Constitution, 130 Yale L.J. 1 (2020).

Natural Law

Finally, natural law stands against the decay of the regime of law itself. It reminds us that law is an institution with a purpose: to proscribe evil, protect virtue, and promote human flourishing. It holds that law, as a system of obligations, is a subset of morality. The same system of reasoning applies to both. Law should protect basic goods and promote the common good—that is, the set of social and material conditions that a community requires for human flourishing. It follows that we define the scope of government by reference to the substance of our rights and duties. Natural law upholds the moral worth of the individual, the rightful authority of just government, and the proper aims of a self-governed community. 

The Problem

Despite a rich intellectual inheritance, conservative jurists often dismiss conservative thought. The only favored theory is originalism.

But while originalism has marched through the federal courts, our jurists are still mired in the muck of legal realism. We have left unanswered the allegation that common law judges “make law,” that there are no principled grounds for traditional legal reasoning. Either a legislature provides a text, or the judge is at sea. When the judge is freed from text, there is nothing out there but raw preference and judicial will. We demurred to these assertions to delegitimize living constitutionalism. The price we paid was our common law tradition—the organic connection between American jurisprudence and natural law. 

The first steps along this pyrrhic pathway are found in the tour de force of Antonin Scalia’s textualist jurisprudence. 

In his 1995 Tanner Lectures, Justice Scalia tore apart the legal profession. His complaint? Students of the common law case method were utterly unequipped to operate in a system of legislation. While the Justice was “content to leave the common law, and the process of developing the common law, where it is,” he questioned whether “the attitude of the common-law judge” was fit for the work of federal and state judges. He viewed the common law as a way to let expert jurists, rather than democratic legislatures, craft the law as they saw fit; he conceded that legal realism had conquered the common law courts. 

He then skewered American jurists for lacking a coherent theory for interpreting texts. For Justice Scalia, applying common law methods to written law raised constitutional concerns. A distinct theory was needed. He led the profession out from its ineptitude with his originalist and textualist philosophy.

But Scalia’s arguments went too far, eroding unwritten law and classical legal reasoning. From the premise that (1) common law was merely judge-made law and (2) legislators alone should make law, it follows that common-law judging in a system of separated powers must go. Justice Scalia’s triumph was establishing the truth of the latter premise. His fatal flaw was tacitly accepting the former. Scalia, like many others, ceded the common law tradition entirely to legal realism. 

The result has been a wholesale reorientation of legal conservatism towards a positivist jurisprudence. 

Conservative intellectual energy is almost entirely exhausted on matters of federal law. In our nation’s fifty-odd legal systems, this one draws the bulk of our attention. No surprise: high court decisions are high stakes. But the focus is even narrower than that. We have primarily analyzed the proper way to interpret the words of the federal Constitution. Conservative jurisprudence has one defining view: a theory how to properly interpret a single (albeit consequential) document. All else—views of textualism, precedent, and so on—flows from that theory.

Conservatives asserted that drawing on sources of law beyond the constitutional text is illegitimate—a usurpation of the prerogatives of the political branches. Elaborate arguments then showed that our Constitution so limited the role of judges that only one method was legitimate: originalism. The theory centered on various contingent features of our regime—our particular separation of powers, popular understandings in 1787, and specific textual commitments in our Constitution. 

Without more, it’s hardly evident that this theory transfers to any other area of law. What has the conservative legal movement offered for state court judges interpreting their own constitution? Or state common law? Or statutes that incorporate common law standards? 

If we wield only a federal originalism clad in the federal separation of powers, then we surrender every other battlefield in our nation’s legal landscape. Our myopic fixation on federal judicial review blinds us to the legal problems that bedevil every other court. State courts decide far more cases than federal courts. And common law subject matters such as tort, property, and contract pervade state court decisions, even when legislators have codified many common law standards. That’s not to mention our federal common law. The fight extends far beyond federal textualism.

Where does that leave us? Either our method for answering the vast majority of legal questions is fundamentally illegitimate by our own admission, or we have no theory beyond the ipse dixit: “Well, those are state courts, and this is federal.” That’s not persuasive. Originalism is largely faithful to the classical legal tradition. Legal realism is not. Our jurisprudence cannot endure half true and half false. It will either become wholly one or wholly the other. Conservatives should choose the classical tradition. 

We live in the world that Justice Scalia made, and we are largely better off for it. The irony of our times, though, is that the situation he faced is now reversed. He worried that lawyers were obsessed with common law reasoning but lacked a theory of reading legal texts. The ascendant conservative legal movement has a coherent theory of interpretation; it lacks everything else. 

 We cannot defeat legal realism unless we ally originalism with our entire conservative tradition.

The Solution          

The task before us is to fashion a conservative jurisprudence that presses beyond textual interpretation. The moral and traditionalist reasoning of the common law method must be revived and validated. Even a better originalism is not enough. We need a holistic conservative jurisprudence. 

First, we need not abandon the conservative hermeneutic. Some theory of interpretation is necessary. When faced with a validly enacted text, courts defer to the legislature as the proper organ for making policy. This requires a theory of how to properly understand textual legal commands. Discerning what the words originally meant enables judges to perform that task with fidelity. 

But interpretation is not the whole of adjudication. Courts must not fall into the trap of thinking that a system containing many statutes must be a system containing only statutes. We cannot shoehorn every answer into the original meaning of Article III’s vesting clause. 

Second, we must revive the traditional understanding of common law reasoning that separates our view from that of legal realism. 

We have been woefully misled by the canard of “judge-made law.” Rather than viewing common law as a body of rules, it must be understood as a method of legal reasoning. A common law court does not simply make up law. We should instead see that they establish law from the general legal rules already made available through reason and tradition. To “establish” does not mean to create ex nihilo but rather to take what is general and amorphous and render it concrete. Courts establish law by giving it a concrete shape or definitive application. This is true even of judicial decisions applying written law. Establishing doctrine and determining applications does not make the judicial decision itself a source of law.

A simple model of common law reasoning is this: Human reason grasps moral imperatives that provide primary rules of human conduct. These moral rules—requiring us to refrain from harming others or to keep our promises—can be understood as binding legal rules, even though they are unwritten. From a positivist perspective, this requires only a rule of recognition designating them as such. From a natural law perspective, all legal rules are derivative of the moral force of these primary rules. Even the obligation to obey positive law flows from them. 

But these rules are relatively indeterminate; people need more specific guidance. The judge, in our system, discerns these moral principles and then gives them a definite shape by reference to custom, which informs the reasonable expectations of the parties. Over time, the case law itself forms customs that courts might reasonably follow. In a hierarchical system, higher courts bind lower courts in their determinations of how custom concretizes the requirements of morality. Reason and tradition thus ground the common law in pre-existing legal obligations. 

The choices that judges make, while not fully mechanical, are meaningfully constrained by their limited role as adjudicators of concrete disputes. As courts develop standards of evidence, burdens of proof, procedures for litigation, and necessary elements of claims, they establish more clearly what a court ought to require before finding a violation of those pre-existing moral obligations. Just as a well-reasoned textualist opinion clarifies the application of a statute and provides a doctrinal test for its application, a common law opinion elucidates the requirements of morality and provides administrable rules for deciding future cases.

Third, we must recognize that written and unwritten law are two blades of a pair of scissors—one alone won’t cut it. At common law, statutes serve to stabilize and publicize the law, providing greater predictability and oversight of the courts. They form part of the background expectations of litigants. Likewise, civil law systems have codes as the basis of adjudications. But unwritten principles nonetheless fill in the inevitable gaps of the text and provide legal answers to disputed questions. The mere fact that common law courts are living alongside a “civil-law system” is hardly an argument for abandoning unwritten law. The two forms of reasoning always work in tandem.

The Strategy

When we focus on state courts and common law cases, we can conclude that originalism is insufficient for a full conservative theory of law. That same recognition should drive our strategy. To revive moral jurisprudence, conservatives should look to the states.

The states-first strategy has been successfully deployed by other legal reform movements. By reshaping the state courts, reformers have laid the groundwork for nationwide victories, including Brown v. Board. This approach offers a path around the high-stakes logjam of federal constitutional debate. 

First, state courts should adopt rigorous interpretive theories for written law. Courts cannot do without a theory of interpretation. And originalism in some form is likely applicable to most state constitutions. It is a bulwark against relativistic evolving-norms jurisprudence and a powerful schoolmaster for disciplining our textual reasoning. We should continue to embrace it as one part of our jurisprudential program. 

Second, state courts should invoke the natural law when establishing their common law. The current approach elevates two aspects of moral reasoning—efficiency and fairness—and excludes all other criteria for legal judgment. That won’t do. Overt policymaking is a false substitute for the robust classical approach. States should reestablish the natural law ground of the common law and let its full logic shape judicial decisions. Anything less is a tacit admission that legal realism has triumphed. 

Third, when the states have accepted the natural law as an integral part of American legal reasoning, the federal courts should follow their model. We must rethink the assumption that federal judges differ in kind from state judges. Common law reasoning, rightly understood, is the anchor of our legal system. Its practical effect may differ because of the limited subject-matter jurisdiction of federal courts, but it ought to be common ground for all judges. 

We should cast aside the anachronistic assertion that the Founders would strip judges of their ability to reason from morality on account of their tenure protections. Instead, federal judges should be equipped by their experience to handle the intricacies of legal reasoning. They are freed from of our election precisely because legal reasoning involves delicate application of complex but objective truths, not the raw channeling of democratic preference. 

Conservatives can revel in our successes, rest on our laurels, and resign ourselves to retaining what little progress we have made in the federal courts, or we can press on to the states. We can force back the liberal jurisprudence that has undermined our traditions and led American law astray. We can—we should—begin a great undoing of legal realism.

No doubt, sensational assessments of the nation’s issues and constant 280-character critiques of the Court are more exciting for elite litigators, more relevant for tenure-hungry academics, and more likely to garner likes and retweets. But the path that leads to plaudits and the path that leads to justice have diverged. Our appointed path begins in state courts, not ivory towers. It is not prestigious. It is not immediately gratifying. But it is worthwhile. 

Even if those who find it are few.




Footnotes

  • 1
    Thanks to Garrett Snedeker for your thoughtful review.
  • 2
    The categorization here differs somewhat from the one made famous in Michael W. McConnell, Four Faces of Conservative Legal Thought, 34 L. SCH. RECORD 12 (1988) (describing the four faces as traditionalism, libertarianism, economics, and social conservatism).
  • 3
    Marc O. DeGirolami, The Traditions of American Constitutional Law, 95 Notre Dame L. Rev.1123, 1125 (2020) (“Traditionalist interpretation focuses on practices, rather than abstract principles or general tests, as constituting constitutional meaning.”);
  • 4
    For a brief introduction, see, Richard A. Posner, Values and Consequences: An Introduction to Economic Analysis of Law, (Coase-Sandor Institute for Law & Economics Working Paper No. 53, 1998). 
  • 5
    For a discussion of originalism’s influence, see Teles, supra note 8. For discussion of originalism in its various forms, see, e.g.,Edward Meese III, Attorney General of the United States, Speech to the American Bar Association (July 9, 1985), available at, https://www.justice.gov/sites/default/files/ag/legacy/2011/08/23/07-09-1985.pdf; Randy E. Barnett, An Originalism for Non-Originalists, 45 Loy. L. Rev. 611 (1999); William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349 (2015); Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971); John O. McGinnis & Michael Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction, 103 Nw. Univ. L. Rev. 751 (2009); ); Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. & Pub. Pol’y 811 (2015); Keith E. Whittington, The New Originalism, 2 Geo. J.L. & Pub. Pol’y 599 (2004)
  • 6
    See Farah Peterson, Expounding the Constitution, 130 Yale L.J. 1 (2020).
Holden Tanner is a clerk for the Supreme Court of Texas. He is a 2020 James Wilson Fellow and holds a J.D. from Yale Law School.

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