The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Senator Josh Hawley of Missouri delivered an impassioned and important speech on textualism, originalism, and the conservative legal movement.
Here is an excerpt:
This decision, this Bostock case and the majority who wrote it, it represents the end of something. It represents the end of the conservative legal movement or the conservative legal project as we know it. After Bostock, that effort as we know it, as it has existed up to now, it's over. And I say this because if textualism and originalism gives you this decision, if you can invoke textualism and originalism in order to reach a decision, an outcome that fundamentally changes the scope and meaning and application of statutory law, then textualism and originalism and all of those phrases don't mean much at all. If those are the things we were fighting for, that's what I thought we were fighting for, those of us who call ourselves legal conservatives, if we've been fighting for originalism and textualism and this is the result of that, then I have to say it turns out we haven't been fighting for very much or maybe we've been fighting for quite a lot but it's been exactly the opposite of what we thought we were fighting for. Now, this is a very significant decision and it marks a turning point for every conservative and it marks a turning point for the legal conservative movement.
You should watch the entire speech.
Hawley expressed many of concerns I have heard over the past 24 hours since Blue Monday (my nickname for Monday, June 15 at the Supreme Court). These remarks do not come from an outsider, but from an insider. Both Josh Hawley, and his wife Erin, were formerly law professors. (We all filed an amicus brief in support of the Little Sisters of the Poor). They both clerked for Chief Justice Roberts, and were regular at FedSoc events. Hawley brings a lot of credibility to this debate.
Hawley's words need to be carefully considered.
Update: Hawley has published his remarks at Public Discourse.