Hungary has been able to withstand the onslaught of Wokeism - conversation with Josh Hammer

The current terms of the SCOTUS will definitely enter the history books as a major paradigm shift in the Court’s approach. What is the stake of the shift and why is it significant?

The most recent U.S. Supreme Court was, perhaps by far, the most successful in my adult lifetime. There were huge, meaningful wins on religious freedom (on both the Free Exercise Clause and the Establishment Clause), gun rights, the curtailing of the unaccountable federal bureaucracy (i.e., administrative state), and most prominently, abortion. The modern American “conservative legal movement,” and indeed

The Federalist Society itself, are very much entitled to take a victory lap.

This term saw most clearly that the dedication and various machinations of former President Donald Trump and former Senate Majority Leader (now Minority Leader) Mitch McConnell have, to a non-negligible extent, paid off. First Amendment and Second Amendment rights are more secure, lower-case “r” republican self-governance is closer to being restored, and many unborn children will be spared. These are unambiguous substantive goods.

At the same time, none of the success of the past term—which we can already see may not always hold up, as in the case of religious freedom and the currently pending litigation of Yeshiva University in New York City (which is off to an inauspicious start)—has anything to say about future terms. And more generally, the jurisprudential debates, including my own proposal for “common good originalism,” are not going anywhere.

In the previous 2021 October Term, the Court overruled a nearly fifty years old precedent, the Roe v. Wade abortion decision. That symbolizes the paradigm shift in constitutional interpretation. Why has the abortion debate become the center of constitutional attention? What is your view on the Dobbs decision that overruled Roe v. Wade?

Abortion is the seminal culture war issue in present America, but it was not necessarily always that way; it only became that way when the Court ruled as it did in Roe v. Wade in 1973. The Dobbs decision, which is one of the greatest Supreme Court decisions in recent memory,

undid a grievous moral and constitutional wrong,

once again opening up the abortion debate in America to democratic discourse.

However, as I have written elsewhere, the Dobbs opinion also does not actually go far enough. Rather, the pro-life end goal is constitutional personhood—the full protection, under the legal ambit of the U.S. Constitution, for the most vulnerable human beings among us. 

What is the future path and challenges of the conservative legal movement in the face of the emerging “woke” ideology?

The rise of Wokeism and the metastasis of woke capital, in particular, both suggest that conservatives must adopt a more “muscular,” hands-on approach to political economy that seeks to bring these malign forces to heel. That means

more antitrust, more common carrier regulation, and more state-level legislation such as Florida’s excellent “Stop W.O.K.E. Act.”

This approach, which will inevitably entail more forthright government assertion against the ascendant threat of a distinctly corporate tyranny, is what we might think of (to borrow Sen. Marco Rubio’s (R-FL) phrase) as “common good capitalism.” And my own jurisprudential proposal, common good originalism, is a natural corollary to that common good capitalism.

The American conservativism many times looks at Hungary as a model country that systematically resists foreign ideological impositions. Why is the approach of Prime Minister Viktor Orbán attractive to national conservatives in America?

I was in Budapest in February and

met Prime Minister Orbán and was impressed with him. 

I have also gotten to know Balázs Orban, his political director. Many national conservatism-sympathetic Americans—often, but not exclusively younger Americans who have come of political age exposed to the decadence and cultural rot that now dominate large swaths of America’s public square—are keen on looking to Hungary as one example of a country that has been able (thus far, at least) to withstand the onslaught of Wokeism. This has tangible implications for policy areas such as immigration and family/sexuality, as well as on the broader issue of the lie of “values-neutrality” as a possibility in the public square.

What are the most burning issues and what should we follow in the 2022 October Term of SCOTUS?

The single biggest issue this coming Supreme Court term is

the return of the thorny culture war issue of affirmative action

—race-conscious admission preferences in American universities—to the SCOTUS docket. I wrote about that here.

I am cautiously optimistic that the Court will once and for all end the systemic racism that is affirmative action in America.