Adrian Vermeule is a law professor at Harvard and a leading proponent of Common Good (or National) Conservatism. He has written an op-ed for the New York Times called “The Supreme Court is on the wrong path.”
I’m not sure what path the Supreme Court is on (we’ll probably have a better idea by the end of June). Therefore, I neither agree nor disagree with proposition set forth in the title.
In the article itself, Vermeule criticizes what he calls “today’s reigning theories of law.” The first is “progressivism,” which he says (and I agree) “shamelessly instrumentalizes the law in the service of a particular vision of social justice centered on identity politics and libertine social and sexual mores.” The second is “originalism,” which he says “pretends to separate law from justice [and] rests on an invented tradition that has projected itself back into the past.”
As evidence that originalism is the wrong track, Vermeule points to the Court’s decision in Bostock v. Clayton County, which found that the Civil Rights Act of 1964 protects against discrimination based on sexual orientation and transgender identity. Justice Gorsuch, a hardcore textualist, wrote the opinion.
But other originalists/textualists reject the conclusion Gorsuch reached. Justice Alito memorably called Gorsuch’s opinion “a pirate ship” that “sails under a textualist flag.”
Thus, the decision in Bostock is less a stain on originalism or textualism than evidence that, like any moderately sophisticated approach to interpretation, originalism and/or textualism can lead to different results depending on which originalist/textualist is doing the interpreting.
As Justice Scalia used to say, proponents of originalism don’t have to show their approach is without flaws. They only need to show that it’s better than the alternatives.
Is common good constitutionalism better than originalism? I doubt it, for reasons set forth below.
In any event, it seems clear that interpreting texts based on what outcome serves the common good can yield different answers to the same question — including whether Title VII protects sexual orientation and transgender identity. Unless the common good is defined theocratically, and maybe even then, it will often be in the eye of the beholder.
Michael Ramsey, a law professor at the University of San Diego and a former Scalia clerk (as is Vermeule), offers this response to Vermeule at The Originalism Blog:
[S]o far I confess that I am entirely unable to understand how [professor Vermeule’s] program is anything other than “courts should rule in accordance with my moral intuitions because that’s best for everyone.” For example. . .I don’t see that common good constitutionalism explains how Bostock should have been decided (though I bet if I knew what his moral position on private sexual orientation discrimination is, I would know how he thinks it should have been decided). And, though I agree on the need to improve the health of the constitutional order, I don’t see how a jurisprudence of common good is going to provide a remedy where there is no agreement on what constitutes the common good.
Though I have no easy solutions to the health of the constitutional order, I would guess that empowering judges to aggressively pursue the common good (as they see it) is not the solution. Instead, I might suggest (1) judges undertake to say what the law is rather than what it should be, and (2) when judges are unsure what the law is, they stay out of it.
That’s how it seems to me, too.