After Birthplace Citizenship Case, The Conservative Legal Movement Needs To Raise Its Standards
The Supreme Court’s 5-4 decision last month in Trump v. Barbara declaring birthplace citizenship a constitutional right — authored by Chief Justice John Roberts and supported by Justice Amy Coney Barrett and the court’s three liberals — elicited a wave of pointed conservative criticism.
The critiques began in the case’s dissents. Justice Samuel Alito called the ruling “a serious mistake.” Justice Clarence Thomas said it “devalues” citizenship. Even conservative legal scholars who admire Roberts and Barrett acknowledge that Thomas’ historical analysis of the 14th Amendment was far more compelling than the thin originalism of the chief’s opinion. Movement conservatives, for their part, are outraged by the decision, which they feel was not only wrong, but wrong in the peculiarly Roe-ish way of extra-constitutionally placing a legitimate political question outside the reach of the nation’s elected lawmakers.
The Republican legal establishment has tried to defend — or at least downplay — Roberts’ ruling and Barrett’s vote. Their arguments — that Barbara only upholds the status quo or that the ruling is #akshually Donald Trump’s fault — have utterly failed to assuage conservatives’ frustration. Indeed, they seem only to be exacerbating the MAGA right’s sense of elite legalistic betrayal. It is urgently important for Republican decision-makers — on Capitol Hill, in the Trump administration, and especially in the originalist/textualist conservative legal movement — to understand why — and what to do about it.
The heart of the dispute is the question of what the Supreme Court is. In the intellectual fantasies of many originalist, textualist lawyers, the court is an apolitical, judicial umpire — merely calling balls and strikes, in Roberts’ famous framing. In the real world, however, the court (very much including the Roberts Court) is America’s unelected super-legislature, redrawing the strike zone however and whenever they please.
The judiciary’s arrogation of legislative power in recent decades is evidenced by its decisions — Obergefell, Bostock, NFIB v. Sebelius, and now Barbara — and also by the intensifying partisanship of the Supreme Court confirmation process in the U.S. Senate. When the court was really just a court, judges were mostly vetted for temperament and competence. Today, Supreme Court nominations are rightly understood as the most politically consequential votes senators take.
The left understands this. That’s why they turned “Bork” into a verb, organized the “high-tech lynching” of Clarence Thomas, and tried to frame Brett Kavanaugh for sexual assault. It’s why they took the unprecedented step, while in the minority in the early 2000s, of filibustering Republican judicial nominees. And why, while in the majority in 2013, they triggered the Senate “nuclear option” so they could confirm judges with 51 votes instead of the 60 required under the rules.
The right was always one step behind in this partisan escalation. It was Republicans who got borked, filibustered, and nuked first. We also endured decades of letdowns from supposedly “conservative” judges who drifted leftward during their lifetime tenure on the bench. And so, when President Trump and a Republican Senate came to power in 2017, they followed Democrats’ precedent, nuked the filibuster, and confirmed Neil Gorsuch, Brett Kavanaugh, and then Amy Coney Barrett at the new 51-vote threshold.
This is the real source of conservative anger over Barbara. Before the “nuclear option,” confirming Republican judges required a nontrivial number of Democrat senators’ votes. That forced conservatives to lower expectations, especially for nominees to the Supreme Court. Whenever a vacancy opened, we hoped for another Antonin Scalia or Clarence Thomas, but glumly understood that we might have to live with another “moderate” like Anthony Kennedy or John Roberts.
Once Senate Republicans nuked the filibuster, those expectations changed.
The days of hoping were supposed to be over. A nominee confirmable with 51 votes no longer has to satisfy Democrats. Under the new rules, a full-fledged commitment to originalism and textualism no longer needs to be tempered or constrained to appeal to the left. All of a sudden, Republican presidents and Republican Senates didn’t need “stealth” nominees. We could appoint and confirm proven, reliable sure things — just like Democrats always have.
Unfortunately, the conservative legal establishment has not adapted accordingly. They are still operating with a Filibuster Era mindset, focused on textual analysis for its own sake.
To be clear, textualism and originalism are and should remain the intellectual bedrock of the conservative legal movement. But a doctrine meant to end judicial free-wheeling should not swing into the opposite extreme: reducing conservative judicial analysis to parsing words on a page, going into a partisan gunfight armed only with an 18th-century dictionary. True originalism seeks to recover what the founders understood, and — crucially — must assume they were acting rationally and within a moral framework aimed at human and national flourishing.
If a hyper-literal reading of 160-year-old legalese leads you to conclude that the children of Chinese spies, criminal migrants, and jihadist terrorists — who cross our borders 38 weeks pregnant so they can give birth on our soil — are entitled to full U.S. citizenship, you are reading so closely that your eyes have crossed.
As Justice Alito noted recently, “A conscientious judge has no choice but to do what the law requires. But we do not have an asinine or idiotic constitution, so an originalist judge should not cavalierly or happily embrace results that defy common sense.”
In Trump v. Barbara, Roberts and Barrett failed that test.
Pulling back from the textual trees to the political and constitutional forest, there is no remotely plausible argument that the people who wrote and ratified the 14th Amendment believed they were enshrining illegal-migrant birth tourism in the Constitution. The Republican legal establishment can parse and rationalize Roberts’ Barbara decision and Barrett’s vote all they want. But in the real world, it remains the judicial equivalent of “suicidal empathy.”
What grassroots conservatives insist Republican legal elites internalize is that Trump v. Barbara is not just about textual analysis. It is about whether American citizens are still free under our Constitution to govern ourselves, according to our values and interests, through our elected legislators. And like it or not, so will every major case going forward, now that the woke left has made anti-Americanism its organizing principle.
In the post-judicial-filibuster world, intellectual adherence to textualism, in and of itself, is no longer sufficient for Republican Supreme Court nominees. Broader constitutional principles of citizenship, sovereignty, and the threat the woke left poses to both must be elevated to judicial first principles. The GOP legal establishment — from the Federalist Society on down — must adapt to this new reality and, in doing so, adopt a new conservative judicial realism.
Like it or not, we are governed today by a post-filibuster, party-line Supreme Court. If conservatives don’t start acting like it, Barbara will soon be the least of our problems.
Post a Comment