<mediadc-video-embed data-state="{"cms.site.owner":{"_ref":"00000161-3486-d333-a9e9-76c6fbf30000","_type":"00000161-3461-dd66-ab67-fd6b93390000"},"cms.content.publishDate":1655226321523,"cms.content.publishUser":{"_ref":"0000017a-8cb2-d416-ad7a-beb7278f0000","_type":"00000161-3461-dd66-ab67-fd6b933a0007"},"cms.content.updateDate":1655226321523,"cms.content.updateUser":{"_ref":"0000017a-8cb2-d416-ad7a-beb7278f0000","_type":"00000161-3461-dd66-ab67-fd6b933a0007"},"rawHtml":"
var _bp = _bp||[]; _bp.push({ "div": "Brid_55137439", "obj": {"id":"27789","width":"16","height":"9","video":"1031730"} }); rn","_id":"00000181-632d-d405-a3e7-f3af42900000","_type":"2f5a8339-a89a-3738-9cd2-3ddf0c8da574"}”>Video EmbedSohrab Ahmari, Patrick Deneen, and Chad Pecknold are among a rising number of intellectuals who want to redefine American conservatism. As part of the growing populist-right movement, theology and the words of men such as Edmund Burke supersede 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 paved the way for this rising tide of populism. The Federalist Society is a target for Ahmari, Deneen, and Pecknold, and they expressed their critiques of the organization in a guest essay for the New York Times titled “We Know How America Got Such a Corporate-Friendly Court.”
“In the progressive imagination, the society is a secretive cabal of theocrats and cultural reactionaries,” the trio writes. “In reality, it is best understood as a professional-development club for what the writer Michael Lind calls ‘libertarians in robes’ who shift power ‘from working-class voters to overclass judges.’”
Deneen is a professor at the University of Notre Dame, Pecknold received his Ph.D. from the University of Cambridge, and Ahmari received a law degree from Northeastern University. Critics will look at the backgrounds of the authors and argue that they are far from the working class and therefore hypocritical, but that’s not exactly true. This critique is a common one for the trio, and their supporters often counter that they have the working class in mind, even if 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 the political philosophy. In short, Deneen and other intellectuals behind the push for Aristopopulism believe our nation’s economic elite are obligated to provide for the common good of the working class.
“Political and cultural leaders have a responsibility to direct legitimate populist concerns towards constructive ends that serve the common good and national interest,” wrote John Burtka in a piece outlining Aristopopulism for the American Mind. When reading the essay by Ahmari, Deneen, and Pecknold, one has to understand that this is the perspective the authors are coming from.
The trio point at previous rulings by high-level members of the Federalist Society on cultural issues as examples of the organization’s faults. “Hot-button social questions are sometimes fiercely contested among those with ties to the society,” they write. “For instance, it was Supreme Court Justice Neil Gorsuch who in 2020 led a majority of the court in ruling that sexual orientation and gender identity apply to the 1964 Civil Rights Act’s definition of sex.”
Yet here is where the argument loses its otherwise solid footing. Chief Justice John Roberts and Justice Neil Gorsuch were in the majority of Bostock v. Clayton County, but Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh dissented. Does the Federalist Society get no credit for being affiliated with three justices that stood against Bostock?
The authors continue to misrepresent the Federalist Society by starting the essay with one sentence alluding to Dobbs v. Jackson Women’s Health Organization as if the news is minor. “With the potential overturning of Roe v. Wade, the Federalist Society appears poised for a triumph,” they write.
Despite the possibility of five or more Federalist Society-produced justices overturning the case that millions of conservatives have mobilized against, Ahmari, Deneen, and Pecknold treat the stances of multiple Supreme Court justices descended from the society as a minor development. “Edward Whelan, an originalist stalwart, countered arguments in favor of constitutional protection of fetal personhood — the likely next stage in the anti-abortion battle if or when Roe falls,” they write. Whelan is treated more seriously solely because he reaffirms the priors of the authors.
The authors have a point about the economic miscalculations brought about by rulings from Federalist Society justices. “Over the past several decades, society heroes like Justice Antonin Scalia upended decades of settled law and clear congressional intent to expand the use of commercial arbitration to employment and consumer contexts,” they write.
Yet Justice Scalia also ruled in favor of labor unions with collective bargaining. The “Boston Harbor” ruling was unanimous and decided that publicly funded projects could require union labor as determined by collective bargaining agreements. Scalia certainly has done what the authors claim, but the article makes blanket statements that consistently fall apart when examples of the contrary are brought up.
The authors could counter by citing one Supreme Court decision, and I can do the same and engage in a tit for tat until we are all out of examples. They critique 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. Deneen, Ahmari, and Pecknold’s philosophy will lead to populist ends achieved by means that fall out of line with an approach that is poised to provide the greatest legal victory for social conservatives in decades.
James Sweet is a summer 2022 Washington Examiner fellow.
