The Conservative Intellectual Movement has, contrary to the beliefs of some, achieved stunning victories and reversals. There is no clearer example of this than the remaking of not only the Supreme Court, but lower courts as well, in large part due to the decades of work by the Federalist Society. This happened, not because they played the Left’s game of legislating by the bench and ruling in favor of what they believed was in the public good, but by reimposing constraint and adhering to the law. They did not impose a conservative vision, a more conservative and less Leftist outcome was the result to eschewing Leftist tactics.
However, that strain on the (purported) right that believes in the “common/public good” as the embodiment of a socialist desire to mould society instead wish to copy the mistakes of the Left and use any “ambiguity” to impose their vision of “how things oughta be”.
“At the margins, under objective legal standards that are fairly applied, the law should be interpreted to advance conservative ideas–i.e., the public good. Of course we should preserve the rule of law, which liberals constantly traduce. But there are many opportunities to turn the law in a more conservative direction, as liberals have done for many years. We can do it more effectively, with more integrity and consistency.”
The problem here is that conservatism, in the Anglo-American vein, is not about proscriptive ideas that ought to be imposed to change society, but the rich inheritance and heritage that serves as guidelines and constraint on such fanciful fundamental transformations of America. Impartial application of precedent and the law is not a barrier to the “public good”, but rather the very foundation for it!
The notion that judges should “interpret” precedent to fit preconceived personal policy positions (the so-called “common/public good”) is to admit that they think of precedent as a speed bump to their policy objectives—it’s “Living Constitutionalism”. Moreover, it’s not “based” but “cringe”.
