The Unsoundness and Imprudence of “Common-Good Originalism”

After decades of struggle, the conservative judicial project has finally produced a possible working majority of five originalists on the Supreme Court. There are plenty of reasons to wonder how consistently they will coalesce in practice and how willing they will be to revisit wrong precedent. But trashing Antonin Scalia’s originalism and replacing it with Josh Hammer’s idiosyncratic, results-oriented version isn’t likely to help matters.
Any effort to seat justices who will overturn Roe needs to take account of the serious political obstacles that stand in the way. We must not surrender in the face of these obstacles. But we must recognize them in order to navigate through them.
Political realities can be confronted and transformed, but they cannot simply be imagined away. Unfortunately, Senator Hawley’s pro-life litmus test promises no more success in the future than it would have had in the past.
In developing their positions on Supreme Court appointments and the Department of Justice, presidential candidates should 1) welcome the battle over the Supreme Court, 2) determine to fight hard for high-quality justices, 3) frame the argument for why abortion policy should be restored to the democratic processes, 4) support the Defense of Marriage Act, and 5) commit to select senior legal leaders who fully embrace their goals and priorities.
The Obama Administration has chosen to place political considerations over a proper defense of the Don’t Ask, Don’t Tell law.