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Herewith, a paradox. On the one hand, legal conservatism, originalism, and textualism have never been more ascendant and better-positioned within the legal academy and mainstream political discourse. But on the other hand, the state of conservative jurisprudence in America has reached a crisis point.1
The crisis point did not arrive overnight. The modem Republican Party's judicial nominations apparatus has often failed conservatives and constitutionalists, dating all the way back to President Dwight D. Eisenhower's fateful twin Supreme Court nominations of Justice William Brennan and Chief Justice Earl Warren. "I made two mistakes, and both of them are sitting on the Supreme Court," President Eisenhower famously said.2 Justice Harry Blackmun, author of Roe v. Wade,3 the twentieth century's moral and jurisprudential successor4 to the Dred Scott5 case, was a President Richard Nixon nominee. Justice John Paul Stevens, liberal lion of the Court for three and a half decades, was nominated by President Gerald Ford. President Ronald Reagan nominated the moderate Justice Sandra Day O'Connor and the idiosyncratic Justice Anthony Kennedy, the latter of whom would encapsulate both a gnostic relativism in metaphysics6 and a jurisprudential commitment to individual autonomy maximalism7 over the course of his Court tenure. President George H.W. Bush greatly erred in nominating Justice David Souter-he of the eponymous "No more Souters" fame-to the Supreme Court in lieu of the stalwart Edith H. Jones. President George W. Bush was similarly mistaken in selecting John G. Roberts over J. Michael Luttig for the position of Chief Justice of the Supreme Court. Suffice it to say that this is hardly a track record of sustained excellence.
According to prevailing mythology, everything changed when Donald Trump became President. At long last, conservatives and constitutionalists had a White House that was unambiguously, passionately committed to stacking the federal judiciary with principled originalists and textualists. This purported well-oiled machine, aided by outside actors with putative expertise in separating the would-be Souters from the true believers, was finally to deliver conservatives to the judicial promised land.
Then came Bostock v. Clayton County,8 last summer's bitter disappointment in which the Court implausibly9 wove both sexual orientation and transgenderism into a key plank of the nation's civil rights statutory edifice. The opinion, of course, was written by none other than President Trump's...