In defense of the federalist society

SOhrab Ahmari, Patrick Deneen and Chad Pecknold are among a growing number of intellectuals who want to redefine American conservatism. As part of the growing right-wing populist movement, the theology and words of men like Edmund Burke are replacing the philosophy of Ronald Reagan and Paul Ryan.

Former President Donald Trump’s crusade against the pre-2016 definition of conservatism and the institution of the Republican Party set the stage for this rising tide of populism. The Federalist Society is a target for Ahmari, Deneen and Pecknold, and they voiced their criticisms of the organization in a guest essay for the New York Times titled “We Know How America Got Such a Business-Friendly Court”.

“In the progressive imagination, society is a secret cabal of theocrats and cultural reactionaries,” writes the trio. “In reality, it’s best understood as a professional development club for what writer Michael Lind calls ‘the robed libertarians’ who transfer power ‘from working-class voters to outclass judges.’

Deneen is a professor at the University of Notre Dame, Pecknold received his doctorate. from the University of Cambridge, and Ahmari earned a law degree from Northeastern University. Critics will look at the authors’ backgrounds and argue that they are far from working class and therefore hypocritical, but that is not entirely true. This criticism is common for the trio, and their supporters often retort that they have the working class in mind, even though they do not belong to the group.

For example, Deneen is a proponent of “aristopopulism” and gave a speech titled “Aristopopulism: A Political Proposal for America” detailing political philosophy. In short, Deneen and other intellectuals behind the push for aristopopulism believe that our nation’s economic elite is obligated to provide for the common good of the working class.

“Political and cultural leaders have a responsibility to direct legitimate populist concerns toward constructive ends that serve the common good and the national interest,” John Burtka wrote in a play describing aristopopulism for the American spirit. When reading Ahmari, Deneen and Pecknold’s essay, one must understand that this is the perspective from which the authors come.

The trio cite previous rulings by high-level members of the Federalist Society on cultural issues as examples of the organization’s flaws. “Burning social issues are sometimes bitterly contested among those connected to society,” they write. “For example, it was Supreme Court Justice Neil Gorsuch who in 2020 led the majority of the court in deciding that sexual orientation and gender identity apply to the law’s definition of sex. of 1964 on civil rights.”

Yet this is where the argument loses its otherwise solid foundation. Chief Justice John Roberts and Justice Neil Gorsuch were in the majority of Bostock v. County of Clayton, but Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh dissented. Does the Federalist Society get no credit for being affiliated with three judges who opposed Bostock?

The authors continue to misrepresent the Federalist Society by beginning the essay with a sentence alluding to Dobbs v. Jackson Women’s Health Organization as if the news were minor. “With the potential reversal of Roe v. Wade, the Federalist Society appears poised for a triumph,” they write.

Despite the possibility of five or more justices produced by the Federalist Society overturning the case against which millions of conservatives have rallied, Ahmari, Deneen and Pecknold treat the positions of several Supreme Court justices from the society as a minor development . “Edward Whelan, a stalwart originalist, countered arguments for constitutional protection of fetal personality – the likely next step in the anti-abortion battle if or when Roe falls,” they write. Whelan is treated more seriously only because he reaffirms the authors’ prior art.

The authors have a point about the economic miscalculations caused by the Federalist Society judges’ decisions. “Over the past few decades, societal heroes like Justice Antonin Scalia have upended decades of established law and clear congressional intent to expand the use of commercial arbitration to employment and labor contexts. consumption,” they write.

Yet Justice Scalia also ruled in favor of unions with collective bargaining. The “Boston Harbor” The decision was unanimous and decided that publicly funded projects may require union labor as determined by collective agreements. Scalia certainly did what the authors claim, but the article makes sweeping statements that constantly fall apart when examples to the contrary are cited.

The authors could counter by quoting a Supreme Court decision, and I can do the same and engage in an exchange of blows until we all run out of examples. They criticize originalism and textualism when they lead to decisions they disagree with, but are silent when they lead to the right decisions.

Ultimately, the authors want a legal philosophy that produces the prescribed policy solutions, regardless of the merits at hand. The philosophy of Deneen, Ahmari and Pecknold will lead to populist ends being achieved by means that do not square with an approach that is poised to deliver the biggest legal victory for social conservatives in decades.

James Sweet is a summer of 2022 Washington Examiner companion.

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