THE CONSTITUTIONAL FLAW IN THE CONSERVATIVE MIND
by Edwin Dyga
Edwin Dyga is the Chief of Staff to the Parliamentary leader of the Christian Democratic Party in New South Wales, Australia. He was the founder and convenor of the Sydney Traditionalist Forum.
The passing of Ruth Bader Ginsburg and the consequent appointment of a third justice to the U.S. Supreme Court by President Donald Trump reignited debate about the impact of jurisprudence on American society. As the debate often revolves around questions of morality and its role in contemporary governance, conservatives cannot boast about their track record. Even if they exert cultural influence over large sections of the public, this is seldom reflected in legislative or judicial outcomes. This disconnect is the result of a political approach on the putative Right that seems to focus on diagnosis — why things are as they are — instead of on self-reflection and a reassessment of the tactics used to arrive at the status quo. What do recent developments in the judicial arena teach us about how we have arrived at this juncture?
Prof. David Flint, former dean of law at the University of Technology Sydney, wrote that the Supreme Court was the American Founding Fathers’ “biggest mistake, a disaster our [Australian] founders followed, even awarding the federal government an untrammeled discretion in choosing judges” (The Spectator, June 27). Flint argues that the Founders should have foreseen the rise of the kritarchy (i.e., rule by the judiciary) in much the same way Alexis de Tocqueville foresaw the potential decay of American democracy. Perhaps Flint is right, but intuition suggests that no matter how a judicial institution is established, politics, like greed and corruption, will make its presence felt. The seismic cultural shifts experienced in recent decades confirm this as we witness the continuing hyper-politicization of the public square. The problem of institutional collapse lies elsewhere, and the Founders of both nations can be forgiven for what seems, in retrospect, to be no more than the sin of gallant naïveté.
The formal structure of an institution, its constitutional order and the framework of rules and regulations according to which it operates, is not enough to guarantee its integrity. To believe otherwise is to indulge in a dangerous utopianism that ignores the primacy of an institution’s animating force: the people who constitute it, their attitudes and dispositions, and their culture, which is never a rigid force and inevitably changes the way organizations operate over time. The cultural impact of a judicial system does not, therefore, depend on whether judges are elected or appointed but on the cultural milieu in which its jurisprudence is shaped. Just as the milieu changes, so does its jurisprudence. Much like the human-resource departments in both the private and public sectors today, fill an organization with revolutionaries and it will reflect their values and act according to their imperatives — sometimes in a manner hostile to the organization’s original purpose.
Collapse is evident when those dedicated to preservation or renewal appear to strike at the foundations of the social order or actively fail to protect its integrity. Consider President Trump’s second appointee, Brett Kavanaugh, who, in his first act as an associate justice of the Supreme Court in 2018, sided with his liberal colleagues in refusing to hear an argument in support of a state law that purported to prevent Planned Parenthood, a billion-dollar corporation dedicated to the promotion of abortion, from receiving additional taxpayer funds. Catholic commentator Michael Warren Davis put it delicately when he said this development “doesn’t bode well” for the pro-life cause (theDoveTV, Dec. 17, 2018). Kavanaugh, Davis said, “didn’t even want to hear the case…. He is invincibly certain that Planned Parenthood is entitled to taxpayer money.”
Similarly, President Trump’s first appointee as associate justice, Neil Gorsuch, wrote the decision in June this year that effectively extended Title VII of the Civil Rights Act to people who profess exotic sexual identities, consequently imposing the next stage of the sexual revolution on the public square and further restricting the public and private rights of citizens who prefer to live by normative values. In an unrelated case decided that same day, he did not dissent from a decision that effectively upheld California’s so-called sanctuary laws that prohibit local law-enforcement officials from aiding federal agents in enforcing federal law.
These decisions are nothing short of a colossal humiliation to the Christians and conservatives who supported Kavanaugh and Gorsuch during their confirmation hearings. What inclines these supposedly conservative appointees to score such “own goals,” and so consistently? Flint writes that the “long term solution is to reverse unaccountable judicial supremacy and the deleterious effect it has had,” but reliance on “originalist” appointments (i.e., judges who claim to uphold original intent of the law) is obviously not enough.
Gorsuch’s decision on the scope of Title VII in Bostock v. Clayton County (2020) was made on the basis of a strict reading of the law. Ironically, this is what conservatives have been demanding of their court officials since the era of judicial activism came to dominate social policy. However, it remains somewhat of a mystery that a self-described originalist would hold that the drafters of the Civil Rights Act had the incessantly expanding matrix of performative sexual identities in mind over half a century ago, in 1964. What strikes the observer is that a commitment to due process and the letter of the law, however flawed in this case, has led Kavanaugh and Gorsuch, ostensible opponents of jurisprudential progressivist overreach, to effectively defend a status quo they were expected to nudge to the Right, if not at least reform to something approximating a legal order untainted by the mischief of contemporary identity politics.
While this may seem counterintuitive, conservatives’ rejection of the political Left’s messianic disposition and methodology is to blame for its inability to reclaim ground lost to the so-called Enlightenment project in the field of law reform. That disposition may be anathema due to the perceived crudity of the Left’s revolutionary character: The nature of a conservative prohibits him from taking revolutionary steps to promote his agenda. By eschewing the Left’s tactics, the conservative does not “lead by example” to “shame his opponents”; instead, he is led by his opponents who are unshackled by the sensibilities of “polite society.” As a consequence, conservatives have been gamed by their own commitments to decorum and process.
Thus, jurisprudential orthodoxy has been turned on itself to further entrench an inherently hostile cultural revolution, and it has done so as a function of its own animating principles: seeming acceptance of the letter of the law (which is increasingly drafted by unapologetic leftist ideologues), restraint in the novel application of precedent (i.e., refusal to engage the Left at its own game), and, of course, compromise in the face of progressive pressure. The result has been a gradual and successive defeat over the past half century for those who would maintain a traditional social order, facilitated by their own judicial appointments.
The historical legacy of this conservative failure can be seen in a number of significant Supreme Court decisions, all of which were facilitated by Republican-appointed justices. In Engel v. Vitale (1962) Chief Justice Earl Warren (an Eisenhower appointee) sided with the majority in banning prayer in public schools. In Griswold v. Connecticut (1965) Warren again, along with Justice John Marshall Harlan II (also an Eisenhower appointee), held for the majority in legalizing the free availability of artificial contraception. In Roe v. Wade (1973) Chief Justice Warren Burger (a Nixon appointee) and Justices Harry Blackmun and William Brennan Jr. (Nixon and Eisenhower appointees, respectively) held for the majority in legalizing abortion. In Lawrence v. Texas (2003) Justice Anthony Kennedy (a Reagan appointee and a Catholic) joined Justice David Souter (a Bush appointee) for the majority, with Justice Sandra Day O’Connor (another Reagan appointee) concurring, effectively normalizing paraphilia nationally.
Though the rationale for those decisions is open to debate, the weakness of the conservative elements on the bench could be identified in their commitment to reason while their opponents’ was a function of their commitment to social engineering at the service of “progress.”
If Justice Kavanaugh were indeed motivated by a desire to retard the hijacking of the judicial system by militant progressives, he would be receptive to any opportunity that might expose the bench to a legal argument that could rationally justify an interpretation of law amiable to advocates of normative values. Yet in Andersen v. Planned Parenthood of Kansas and Mid-Missouri (2018) he seemed to agree that the state should not consider evidence of alleged organ-harvesting from aborted children, evidence which an experienced legal team believed had reasonable prospects of being persuasive in a court of law. Where does this urge to err on the side of the enemy’s program originate?
Giving a hearing to arguments, however tenuous, is the leftist strategy for shifting public opinion and creating rhetorical space for the development of legal precedent. Forever on the lookout for implications and inferences, judges committed to “progressive” social engineering through judicial fiat have set a now-long-standing precedent for this jurisprudential strategy — one their erstwhile opponents refuse to follow. It is difficult to imagine that there wouldn’t be a prima facie case to consider in Andersen, given the complex legal and moral arguments cited by both sides in what is one of the most passionately contested debates in the American public square: When does human life begin? Yet the conservative disposition, forever disinclined to learn from the victories of the Left — and therefore incapable of applying strategies that actually succeed — is thus constitutionally handicapped in the culture war.
What, then, are we to make of alleged champions of judicial originalism who lead the charge for the continuing revolution in social mores? The coalition on which Trump was delivered to office in 2016 had to squint at Gorsuch’s “long history of espousing progressive opinions,” Davis writes at CrisisMagazine.com (June 17), in order to avoid the potential disaster of Hillary Clinton appointments to the Supreme Court. “What do we have to show for it?” Davis asks. Not much, it seems. Gorsuch was preferred over Amy Coney Barrett, whose cultural traditionalism suggested that her Senate confirmation hearings would be excruciating and, therefore, intolerable. The torturous process endured by the compromise appointee Gorsuch and his family illustrated that the Trump administration and its Christian and conservative supporters suffered the indignities of a contentious confirmation process anyway, for little in return.
While it is true that both Gorsuch and Kavanaugh have shaped, and will likely continue to shape, the future of American jurisprudence the right way in other areas, their milquetoast resistance — or effective defection — on these civilization-defining issues is unforgivable. Victory in “most cases” isn’t the point; victory in the difficult cases is crucial.
The passing of Justice Ginsburg in September opened the path for yet another appointment by the Trump administration. Amy Coney Barrett’s successful appointment to the position this October — on the auspicious date of Hillary Clinton’s birthday, no less — unsurprisingly infuriated the political and cultural Left. But legal traditionalists would do well to restrain themselves from pre-emptive celebration. Constitutional scholar Patrick Deneen gave a cautious endorsement of the charismatic Catholic jurist while noting that she may well be susceptible to the “gentry liberal” ethos that has seen a successive number of allegedly conservative appointees to the Supreme Court lean Left or defect to the progressive side of the bench altogether (First Things, Sept. 29).
An early portent of failure might be seen in the manner in which conservatives promoted Barrett’s candidacy in the media: her status as a woman, the “diversity” of her family, and in some cases playing down her Catholicity. These were highlighted as assets or advantages, but all of them are markers of politically progressive legitimacy. How can a conservative prevail by reaffirming an allegiance to liberalism? Would it really be a disqualifier to say that the only equality she intends to promote is equality before the law, that she will bring the wealth of Aquinas to the bench and reintroduce the spirit of Antonin Scalia?
These unhappy developments bring to mind my own experiences, a decade ago, as an advisor to the New South Wales attorney general and minister for justice. New South Wales is the most populous and litigious state in Australia and, as such, sets the tone for legal reform throughout the Commonwealth. Under the Australian system, ministers (and the AG) are appointed from among elected parliamentarians. The AG was elected to the Lower House in an atmosphere of considerable acrimony, mostly caused by activist elements who targeted his Catholic faith and history of pro-life advocacy as a “threat to democracy.” They denounced him as an “extremist,” called his appointment evidence of a “creeping theocracy,” and accused him of other such predictable nonsense. While in the privacy of personal conversation he did profess a commitment to fighting a culture war, this was more rhetoric than praxis.
The invectives took their toll, however, and the preferred strategy was to “prove” to those who despised him that he wasn’t the incarnation of their greatest fears. The result was an unremarkable policy agenda that terminated with his eventual removal from the Ministry and retirement from politics shortly thereafter.
Advice can be given, but it cannot be compelled. I recall a conversation with a senior colleague about the perils of judicial activism in which I suggested that the one way to put a stop to it would be to engage in it from our side of politics. The appointment of judges and magistrates is the responsibility of the minister; there are no confirmation hearings. Surely the specter of activist judges pushing the acceptable scope of debate on contentious issues to the Right would have roused an outcry against conservative judicial activism. Today, the brazen impudence of the Left comes down exclusively on the activism of conservative justices. A decade ago, however, there might still have been a desire to manifest a semblance of impartiality in the eyes of the public. Thus, the whole culture of “legislating from the bench” might have been put in the spotlight, irrespective of the politics involved. Whatever the outcome, either judges committed to normative values and legal orthodoxy would populate the bench or the whole concept of activism might face critical scrutiny.
Yet the blissful incomprehension that glazed over the eyes of my senior colleague in response to my suggestion of confronting the Left at its own game was telling — and deflating. Instead, a steady stream of “sensible” judges (his description) was appointed, one of whom actually boasted of his feminist credentials in a press release. I asked the then-convenor of the Samuel Griffith Society (the Australian equivalent of American Federalists) whether they were ever consulted about judicial appointments during that period. His answer was a simple “no.” I felt a fool for even asking.
The pathology of meekness among main stream conservatives is evidently shared across the Anglosphere. There simply doesn’t seem to be any real desire to prevail. The heart is cold, and the fight is gone. The root of this flaccidity of character is as much a function of allowing their political foes to set the boundaries of acceptable discourse as it is with adhering to rules that are no longer applicable to modern political combat. Justices Kavanaugh and Gorsuch are undoubtedly brilliant judicial scholars in their own right, but they (and their appointers) do not seem to appreciate that one cannot wear red and march in a straight line when fighting a guerrilla war.
The same could be said of my colleague, who, in another exchange concerning the reasons why conservatives are losing the culture war, stated laconically, without the slightest tone of concern or urgency, “There are more of them than there are of us.” When asked why he thought that was the case, he chuckled condescendingly and walked away. These exchanges are memorable because they are shocking; they fill a person concerned about the future of his nation with bitter dread.
Is this a conflict between generational perspectives? Opposition to Australia’s legislative redefinition of “family” in 2018 was organized through a corporate entity presided over by three directors, two of whom were born in the 1930s, the other being not much younger. The campaign, evidence of which was difficult to discern on the streets or in cyberspace — where cultural and political questions are determined by a growing cohort of engaged citizenry — failed spectacularly and unsurprisingly. Anything that was effective in drawing the public’s attention to the creeping totalitarianism of the “woke Left” (such as an Internet meme that was cited in parliamentary debates) was, of course, dutifully withdrawn in an attempt never to give offense to the enemy. These people might be described as “beautiful losers,” but the “beautiful” aspect relates to their oft-professed principles, which might be true in a teleological sense but which are no longer valid in light of contemporary rules of engagement. They are trapped in an Ernstfall in which they meander blindly, wondering why the times keep passing them by. The tragedy is that they seem incapable or unwilling to learn from their, or anyone else’s, mistakes.
The perennial complaint that I and some of my younger colleagues had against our senior leaders was the utter lack of mentorship or support, outside of the simple world of party politics, which would be aimed at fostering a future cadre of community leaders capable of forming an alternative cultural and political elite. But under these circumstances, even with such mentorship, all we can hope for is a litany of future judicial, political, and managerial officers who “sensibly” — if unwittingly — comply with the leftist program and steer the course of “progress.”
Pace Flint, the biggest mistake does not lie with the Founders (whether American or Australian) but with those charged with the task of defending the institutions the Founders established. An effective defense requires an offensive strategy in the cultural sphere. But this is rarely accomplished, much less tried. It is past time for conservatives to recalibrate their methodologies if they are to have any real hope of achieving their objectives. Political history is a record of competing rules of engagement between opposing cultures, worldviews, and systems. Contemporary conservatives are historically illiterate, for they are unable to recognize where tactical changes in approach to defending those institutions have become necessary. It is time to realize that a different kind of leadership is required.
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Edwin Dyga's "Why Conservative Justices Run Interference for Liberal Causes" was originally published in the New Oxford Review (December 2020), and is reproduced here by kind permission of New Oxford Review, 1069 Kains Ave. Berkeley CA 94706-2260.