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 such 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.

 

From Steve Bannon to Robby George: The Catholic Foundations of American Conservative Thought

This essay traces the arc within movement conservatism in the United States from Steve Bannon, Chief Strategist to President Donald Trump (and arguably the most reviled and feared conservative political actor in American public life) to Robby George, McCormick Professor of Jurisprudence at Princeton University (and arguably the most respected and influential conservative political thinker in American public life).

Stylistic and intellectual differences between Bannon and George, real though they may be, cannot obscure the common ground they share regarding both the sources and the implications of their ideas, specifically those ideas pertaining to Catholic (or Thomist) natural law. While neither might relish the comparison, the relationship between Steve Bannon and Robby George is the relationship between messenger and message, between musical prelude and orchestral suite.

The Messenger and the Message

Irish-Catholic Steve Bannon embeds in the White House an emotionally manipulative, threat-driven sensibility, with methods and antics that echo the methods and antics of Irish-Catholic Senator Joseph McCarthy (and, more recently, two fellow Nixonians, Irish Catholic nationalist Pat Buchanan and Catholic agitprop maestro Roger Stone). A sensibility, and a set of methods that are politically effective and destructive, but inherently unstable and unsustainable. For this reason, Bannon’s intellectually suspect flirtations – with Catholic mystics, fringe historians, and prophets of apocalypse – probably also entomb him politically, alongside fellow Irish-Catholic street brawlers, Bill O’Reilly and Sean Hannity, for whom success is ultimately about insurgency, about blowing up things, which means, ultimately, that one blows up oneself.

Put another way, Steve Bannon is all about tactics. An architecture of assumptions scaled to the existential stakes of our current moment in time might therefore tell us that Bannon is epiphenomenal. He is only the messenger. He is not the message. Bannon’s talents for political mayhem have surfaced and brought into more clear relief the remarkable influence of idea-driven institutions such as the Heritage Foundation and the Federalist Society around and through which American political conservatism has built itself into the dominant force in contemporary American politics. Catholic-powered ideas about natural law provide the most enduring and consistent thread of thought at the most high-profile and well-funded conservative think tanks and foundations. As the leading philosopher of Thomist natural law on the American political scene, Robby George most clearly articulates and contains within himself the distilled message and the intellectual contradictions of these institutions.

The Catholic Moment

Roman Catholic influence in American politics has mushroomed in the past 40 years, specifically in response to the crisis engendered by the 1973 Roe v. Wade decision, but more generally as an organizational and intellectual presence best evolved to exploit and respond the cultural uncertainty and flux of our times. The precepts of Roman Catholic theology – specifically (although not exclusively) with regard to the human life / human dignity issues associated with reproductive politics – now interpenetrate conservative American political thought and nearly every political institution of consequence, including the Republican PartyCongress, the White House, the military, and the media.

Five Catholics serve as justices on the Supreme Court. A sixth, Neil Gorsuch, is a formerly devout Catholic who now worships as an Episcopalian. Antonin Scalia, the justice Gorsuch replaced, was of course also Catholic. Which means seven of the most recent ten justices have a Catholic background (with Episcopalian identification one shade of gray removed from Catholicism). Prior to the appointment of Antonin Scalia to the Supreme Court in 1986, only six of the previous 103 justices serving the previous 197 years of the Court’s history had been Catholic (the first being Roger Taney, appointed by Andrew Jackson in 1836).

None of this happened by accident. The hegemony of Puritan/Protestant ideas/ideals in American history always masked a specific organizational weakness. We can presume this organizational deficit is dispositionally endemic to fractional/fractious religious movements. In the case of American cultural formations associated with Protestantism, we can also speculate this institutional insufficiency was reinforced by the omnipresent option – dating back to the settlement patterns of 16th-century Protestant sects – to separate, to drift, to disperse, to migrate. Or as Albert Hirschman’s paradigm might suggest, to exit. This weakness the Articles of Confederation expressed politically and the Constitution and doctrines of federalism barely masked.

American Catholics lacked both the recursive instincts to fractionalize of post-Reformation Protestantism and many of the first mover settlement options of Protestant sects and communities that preceded the arrival to the United States of Catholic immigrants. But American Catholicism possessed a latent advantage that proved to be enormously functional in the decades following World War II, when economic growth and global reach allowed American Catholics to attain business and financial prominence and political influence that had previously eluded them. That latent advantage was organizational, a capacity integral to an enormously sophisticated, globally minded religious enterprise with centuries of experience building institutions and making theory practical via the law. And when theory – the systematic elaboration of ideas about cause and consequence – becomes practical and programmatic, it suddenly also becomes powerful.