The Supreme Court Is on the Wrong Path

 

Professor Adrian Vermeule, in his essay, "The Supreme Court Is on the Wrong Path" (2/2; SR2) wistfully longs for a time when the Justices of the Supreme Court interpreted the law in the service of the "common good". If ever there was such a time, which is doubtful, the Court recently, in the Professor's view, has strayed from that path.

No one should dispute Prof. Vermeule's contention, that the overarching purpose of the law is to promote the general welfare or the common good. And he is right to argue that originalist judges sacrifice that goal to a pointless obeisance to ancient views of justice in their search for contemporary meaning and often deviate from that practice when it better serves their favored result.

But Prof. Vermeule does a disservice to progressive judges when he suggests that their decision-making prompts division rather than common good. Indeed, all but one of the cases marshaled by Prof. Vermeule, as examples of bad judgment, expose the foibles of originalism, not progressivism.

While it may be possible to define common good in general terms, as does Prof. Vermeule, it is far less susceptible of a commonly accepted application. As the old saying goes, one man's meat is another man's poison. Still, it would seem the reasoning of progressive judges is far more consistent with the promotion of basic values than the stilted perspective of originalists.