The American Constitution Society Still Does Not Have A Competing Theory Other Than “Antitrumpism”

Jeffrey Toobin had a remarkable column in the New York Times, titled “The Plan for a Radically Different Supreme Court Is Here.” What is that plan? Read the article from top to bottom, and you won’t find an actual plan. Not even the concept of a plan.

The ostensible purpose was to suggest that the American Constitution Society could be a viable alternative to the Federalist Society. There is glowing praise of ACS’s newish President, Phil Breast. This column follows another glowing profile of Brest by Carl Husle in the Times in October. (I don’t recall any such similar fanfare for Sheldon Gilbert, who has effortlessly taken the helm of FedSoc.) Yet if you peel a few layers deep off Toobin’s lede, you realize precisely why ACS can never rival FedSoc. It is not because of lack of funds or lack of power, but due to a lack of ideas. In short, despite their best efforts, there is no viable alternative to originalism.

Like many Democrats, Mr. Brest rejects originalism and believes there should be a different way to interpret the Constitution. “We have to have an affirmative message around constitutional interpretation in the same way there has to be an affirmative message around elections and politics,” he told me. “And it can’t just be, ‘We’re not originalists’ in the same way that A.C.S. can’t just be, ‘We’re not the Federalists.’ That’s not how I view the organization, and that’s not how I want to be part of the solution to countering originalism. There has to be an affirmative piece there.”

What is that “affirmative” theory? Brest has no clue. The only viable strategy is “antitrumpism.”

For now, under Mr. Brest, the A.C.S. seems headed for an approach that looks like the one that Democratic politicians have so far adopted: aimed more at opposition to Mr. Trump’s record rather than on a specific, alternative vision for the Constitution. In his opening message to the group, Mr. Brest described the A.C.S. as building “a bulwark against overreach by the Trump administration and the Roberts court.” This is understandable, perhaps even wise, because in the view of Mr. Brest’s universe of allies, the Trump administration has violated constitutional norms under any interpretive theory.

So much for a ruling for the ages.

How does that approach translate to judicial philosophy? In other words, what would a future Democratic President look for in judges? Brest also doesn’t know:

Mr. Brest has pledged that A.C.S. will continue its Biden-era focus on judicial appointments. “As an organization, we will stay on top of legislators, we will stay on top of the next administration, to make sure that judges are the No. 1 priority going forward,” he said.

As for what those judges will stand for — as opposed to what they stand against — Mr. Brest has no clear answer. He, along with other Democrats, will need one.

I’ve lost count of the number of law review articles that attack originalism and textualism. Frankly, I’ve stopped reading them because they don’t matter anymore. There was an ideological battle that was waged and won. And until the left can put forward a viable theory to compete, originalism will remain the dominant jurisprudential force. As Justice Scalia would say, FedSoc doesn’t need to outrun the bear, we only need to outrun ACS. After half a century of great debate, the originalists are still not tired of winning.