A MORALLY EMPTY JURISPRUDENCE- Hadley Arkes on #Bostock #SCOTUS the lead essay today at @firstthingsmag
A thread 1/x
firstthings.com/web-exclusives…
A thread 1/x
firstthings.com/web-exclusives…
In the aftermath of the wreckage, as we start assembling the pieces, we discover that we have now Originalists who defend the rights to abortion, same-sex marriage, and transgenderism, while others have long resisted these moral novelties. 2/x
But if Originalism is divided on questions of this kind, is it indecorous to pronounce the plain truth?: That Originalism indeed has nothing to say on matters of real consequence. It is a morally empty jurisprudence. 3/x
If there is any lingering doubt on this matter it was swept away by one young professor, who looked on the decision in these cases and pronounced it a proud day after all for conservative jurisprudence: “One can agree on method,” he cheerily said, “and still disagree 4/x
in particular cases. That all the opinions were textualist is a huge victory in and of itself!” I suppose that if the justices had decided to take out pen and quill and write the opinions in longhand, he could have pronounced this a grand day for Penmanship. 5/x
But to attend precisely to what he was saying, he has given us the latest, ringing affirmation of Justice Holmes: For what he celebrates is a style of jurisprudence, so serene now in its detachment from moral judgment, 6/x
that it is proud to have nothing to say, as a system of jurisprudence, on the things that are right or wrong, just or unjust. 7/7
