Jesse Merriam persuasively argues that legal conservatives are no longer committed to maintaining the essential features of the American legal and political order. They are instead obsessed with matters of constitutional interpretation, emphasizing the related doctrines of originalism and textualism. So they consider it something of a victory when progressive justices such as Elena Kagan and Ketanji Brown Jackson embrace those doctrines, even though it’s perfectly clear they will use them for progressive ends. Indeed, even Justice Neil Gorsuch, an avowed textualist, did so in Bostock v. Clayton County (2020) when he insisted, absurdly and ahistorically, that Title VII of the 1964 Civil Rights Act protects individuals from employment discrimination based on sexual orientation and gender identity. His pretextual textualism is as lawless as anything that has animated judicial supremacists since at least the 1950s.
Furthermore, making originalism and its variants the core of legal “conservatism” is a fool’s errand. It does not give conservatives a positive legal language in which to express, or a legal agenda with which to fight, the substantive evils that non-originalist decisions represent. And this assumes that originalism even provides the tools to overturn such decisions, which is hardly clear.



