The Era of Conservative Legal Formalism is Over

When I was in law school, most legal liberals had a touch of anxiety that we were supporters of "activist judging".

That isn't to say we thought we were lawless. We just knew what our sin was, and our sin was being too tempted to be "flexible" with the law in order to secure important progressive ends of justice or equality. Legal conservatives had the opposite sin -- a too-rigid commitment to legal formalism that might cause them to unnecessarily endorse suffering or injustice based on slavish fidelity to legalistic principles. Whether earned or not, conservatives were seen as the mantle-holders of technical legal prowess (albeit perhaps at the expense of the bigger picture).

These were just fears, and so perhaps they never reflected reality. What I can say is that these days, those fears even as fears are gone. I know of no legal liberals these days who think of judicial conservatives as being the guardians of (too much) legal formalism. 

Reading folks like Steve Vladeck or Rick Hasen -- who if nothing else are technical experts in their respective domains (of federal courts and election law, respectively) has emphasized not just the moral objectionability of many recent right-wing rulings, but their legal sloppiness. They are absolutely not instances where a slavish devotion to legal formalism is leading to unpalatable results. They're instances where judges are just completely ignoring legal forms in order to stretch to the unpalatable result.

The era where the battle lines were "conservative formalists" versus "progressive pragmatists" are over. Conservatives have lost even the perceived dominion over being committed to formal legal procedures -- no small feat, if I'm right that even legal liberals for a long time had tacitly conceded that to be a conservative strength. But this is indeed the era where conservative judicial activism is running amok; right-wing judges running roughshod over any sort of professional legal principle in the manic pursuit of conservative policy objectives. If nothing else, it's restoring confidence among the legal liberals in our own technical aptitude. Small consolation, I know, but perhaps it will lay the foundation for a broader backlash.