The conservative legal movement’s defense of the textualist high ground has become nothing more than a ceremony performed over a corpse. Dan McLaughlin, in National Review, celebrates the Supreme Court’s 6–3 ruling in FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd., as a triumph of judicial restraint, a clean holding of the line against implied private rights of action, a vindication of a method that insists the text Congress enacts, not the migrating intentions of committee staff, is the only law. He dismantles Justice Jackson’s dissent with the same tools he once used in his own practice. The opinion, he argues, is a bellwether that the Court’s majority is finally serious about the separation of powers. It is, as analysis of a securities-law statute I once traded under, immaculate.
I will grant the most honest version of the case that lies beneath the docket. A court that invents lawsuits Congress never authorized is a court that has stolen the legislature’s pen. McLaughlin is right that the implied-right-of-action regime of the 1960s and 1970s was an open invitation to the judiciary to impose policy preferences under the cover of statutory interpretation, and he is right that Justice Barrett’s opinion, with its mechanical insistence that only a clear “rights-creating” phrase creates a private remedy, is the proper constitutional answer. He is right, too, that committee reports can never substitute for the text the whole Congress passed, and that the scorn for legislative history was earned by decades of abuse. Those are genuine conservative commitments, and I will not pretend they are trivial. I have, in my own life, watched enough regulation come down from a distant capital to know that the boundary between the lawmakers and the judges is one of the few fences a town can hide behind.
But the beam in the conservative legal movement’s eye is not its fidelity to the text; it is that the text it labors so heroically to defend protects nothing the community it once served can touch. The private-equity fund that bought the nursing home on the west side of Adams County didn’t need an implied right of action; it needed a purchase agreement and a shell company in Delaware. It loaded the home with debt, billed the residents’ estates for the interest, and stripped the equity without a single lawsuit because the contracts it used are, by any textualist’s reading, perfectly valid under the laws the Court was protecting. The hedge fund Saba Capital, the activist investor at the center of the Court’s ruling, does its real damage not through novel causes of action but through the ordinary machinery of leveraged takeovers, the same machinery that has already bought the local newspaper, the mobile-home park, and the family farm, and will, given enough time, buy the water utility. The conservative legal elite has spent a generation fighting a procedural war against judicially invented lawsuits while the donors who supply its institutions have, without a single activist judge, liquidated every tangible institution the lawsuits were supposed to protect. The Court’s opinion in FS Credit is a monument to a movement that now exists only in the briefs its best lawyers file.
I know this particular blindness because I spent my own years inside its economic analogue, trading the same instruments the Court now interprets on a desk in Chicago, watching the green numbers move without ever smelling the soil they were built on. The grammars of finance and law have the same deadly abstraction. They are beautiful, internally coherent systems of rules that generate their own internal victories — a textualist win here, a leveraged buyout there — without ever asking what is happening to the concrete institutions those rules were meant to undergird. The nursing home that a fund bought and gutted did not experience the majority’s fine reasoning about the difference between contract remedies and causes of action; it experienced an invoice from a holding company in the Cayman Islands and a reduction in the number of skilled nurses on the floor. The parish that closed when the diocese consolidated its rural churches did not know whether the Administrative Procedure Act had been violated; it knew only that the last Mass in the county was said in a building that had been a schoolhouse before it was a sanctuary, and that the next nearest church was an hour’s drive away. The law McLaughlin celebrates is now a castle wall around an empty field. It guards the perimeter with great technical skill while the people inside the walls are already gone.
The betrayal is not that the Court is applying the correct interpretive method. It is that the movement applauding the decision has, for the same thirty years it spent perfecting the method, funded and defended the economic forces that dissolved every community capable of exercising the liberty the method was built to protect. The private-equity fund does not need an implied right of action to loot a nursing home; it needs a friendly regulatory environment and a passive Congress willing to treat the home as an asset class. Both of those the movement’s own political arm has repeatedly provided, while the movement’s legal arm writes another amicus brief about the nondelegation doctrine. The farm that sold its herd because the milk price collapsed under the weight of a consolidated supply chain never had a cause of action under the Commodity Exchange Act; it had a contract with a processor who answers to a snack-food conglomerate in Purchase, New York, and that contract was as textually airtight as the statute the Court just interpreted. The legal victory is a victory in a courtroom while the town the law was supposed to shelter dissolves under the very market forces the legal elite’s donors perfected.
The way out is not a different interpretive theory. It is the distributed, local ownership that never appears on the docket of the Supreme Court because it is not a question of federal law; it is a question of who holds the deed. The nursing home that answers to a distant fund can be replaced by a member-owned cooperative, where the families with a bed inside elect the board that sets the budget, and the capital stays in the county. The milk processor in La Farge, Wisconsin — an organic dairy co-op owned by the farm families whose milk it packages — sets its own price and keeps a hundred families on the land precisely because no activist investor can buy a seat on its board, no judge can find an implied right of action, and no hedge fund can force a sale. The Adams-Columbia Electric Cooperative, headquartered right here in Friendship, serves thirty-one thousand member-owners across twelve counties with a single vote apiece; its poles and lines are the property of the people who use them, and no holding company can strip the asset and bill the members for the debt. Those institutions are the real bulwark against the power the conservative legal movement claims to fear, and they are built not in the marble halls of the federal courts but in the county board rooms and the church basements where the movement once had its roots.
The Supreme Court may well hold the line against legislative history for a generation, and I will not mourn the demise of that particular abuse. But the nursing home in the next county will still be owned by a fund in Connecticut, the local dairy farmer will still sell his milk for whatever the conglomerate deigns to pay, and the hardware store on Main Street will still close when the regional bank, citing the same textualist principles that protect its own contracts, refuses to renew the owner’s line of credit. The conservative legal movement has perfected the brief. It has forgotten the town.