Matey for SCOTUS

If Trump wants a Scalia for the new era, he should look to Judge Paul Matey of the Third Circuit.

By Andrew M. Hayes, a 2025 graduate of Harvard Law School; and Benjamin Holbrook, a member of the Class of 2026 at Harvard Law School.

When Ronald Reagan was sworn in for his second term in 1985, the conservative legal movement was in the wilderness. The Supreme Court was formally helmed by Chief Justice Warren Burger, a Nixon appointee, but the Court’s liberals dominated the Court’s direction. Justices like William Brennan, Thurgood Marshall, and Harry Blackmun had effectively continued the deluge of progressive precedent begun in the Warren era. Their jurisprudence endorsed the perpetual expansion of individual liberty, regardless of the consequences for society. Precise legal reasoning was often ancillary to the progressive aims of social justice; as Justice Marshall once wryly admitted, “You do what you think is right and let the law catch up.”

Against this wave of judicial activism by legal progressives, President Reagan’s first appointment to the Court, Sandra Day O’Connor, proved far too modest to slow the liberal agenda. In the academy, on the bench, and in the ordinary practice of law, conservatives continued to be sidelined, enfeebled, and woefully outnumbered. They needed a lion, a spokesman who could understand the serious intellectual arguments the conservative movement offered and withstand the slings and arrows of a progressive judiciary that would resist all correction. In 1986, Reagan found just such a standard-bearer in Antonin Scalia.

Today’s conservative legal movement faces a different kind of wilderness. It’s no longer the meek and defensive pondering of a few academics—indeed, it rules the world, as even Justice Kagan famously acknowledged in 2010 during her confirmation hearings (“We’re all originalists now”). But the movement risks squandering its control. The second Trump administration has exposed a reluctance by the Roberts Court to put its foot down when progressive federal judges stretch the law to block conservative priorities, even in areas where the judicial power would normally be at its weakest (immigration and foreign policy, to name two prominent examples).

The conservative movement has been found unprepared for this moment. Perhaps it’s a case of the dog who caught the car. We live in a post-Roe, post-Lemon, and post-Chevron world, no small feats for our movement. But the liberal worldview of the Warren Court still governs much of our law, and many liberal (and even nominally conservative) judges are more than willing to bend precedent to bar President Trump from acting on the policies he was elected to enact.

Conservative lawyers, academics, and law students need a new kind of Justice, one who takes seriously the academic revival of natural law and the common good, who sees the continued threat of a progressive judiciary, and who seeks to responsibly use (and limit) the judicial power.

In his first term, President Trump picked three justices who represent the best of the Federalist Society model for judges. Justices Gorsuch, Kavanaugh, and Barrett are uniformly sharp, respectable, and impeccably credentialed, but also uniformly reluctant to challenge the status quo. President Trump, like President Reagan, enters a second term at a moment when the conservative legal movement needs its next lion. Conservative lawyers, academics, and law students need a new kind of Justice, one who takes seriously the academic revival of natural law and the common good, who sees the continued threat of a progressive judiciary, and who seeks to responsibly use (and limit) the judicial power.

In short, they need Justice Paul Matey. 

A Servant, Not a Careerist

New wine cannot be poured into old wineskins, and the next bold development for the conservative legal movement cannot simply retread the methods and institutions that came before. Judge Paul Matey is a new man for a new era, embodying in his career the grassroots, polity-first ethos that can define the next generation of the conservative movement.

Matey claims an ordinary, even unremarkable background. Matey was raised in suburban New Jersey and, like Justice Scalia, was a product of Jesuit education, graduating from the University of Scranton in 1993. After working for five years, Matey attended law school locally at Seton Hall University, where he graduated summa cum laude and served as editor-in-chief for the Seton Hall Law Review. While Judge Matey is hardly the double-Yalie or Harvard squash captain who normally gets noticed in the status-obsessed world of SCOTUS handicapping, his background evinces a closer tie to ordinary American conservatism, outside the liberal bubble of elite academia. In selecting his next appointment to the high court, President Trump would be wise to remember his own famous words that “the next chapter of the American story will not be written by the Harvard Crimson.”

Judge Matey’s career is a study in the virtues that outshine ready-made pedigrees: drive and mastery. After clerking for Judge John Lifland on the federal District Court of New Jersey, he clerked for Judge Robert Cowen on the United States Court of Appeals for the Third Circuit, the same bench where Matey himself sits today. Judge Matey then joined Kellogg Hansen, the same powerhouse litigation boutique that bred Justice Neil Gorsuch and dozens of other top-flight D.C. litigators.

For most prestige-driven D.C. attorneys, climbing the ranks at Kellogg or hopping to a partnership at another BigLaw player would be the natural progression of one’s career. But Judge Matey left the firm and returned to New Jersey, serving as an Assistant U.S. Attorney during the Bush administration. Matey prosecuted a vast docket of criminal matters, ranging from complex white-collar crime and securities fraud to child exploitation cases. After a stint in the U.S. Attorney’s office, most attorneys would have taken their pick from any leading firm in the state. But Matey remained in public service, joining the staff of Governor Chris Christie in 2010. He served half a decade as legal counsel to Governor Christie, overseeing analysis of all legislation, administrative regulations, and executive orders.

Between leaving the governor’s office and his appointment to the Third Circuit in 2019, Judge Matey again focused on community service by serving as general counsel secretary of the University Hospital in Newark. In this role, Matey oversaw the regulatory functions of the hospital and supervised the hospital corporation. This commitment of Judge Matey to his roots typifies a modern legal conservatism that has steadily rejected careerism and ambition for its own sake in favor of a commitment to the moral fabric of communities. If the lukewarm proceduralism of Chief Justice Roberts or Justices Gorsuch and Kavanaugh has taught us anything, it’s that warriors don’t live in McLean and Bethesda. The new heroes of the conservative movement didn’t chase Olympus for personal profit; they went home to handle the hard work of making their hometowns better.

If the lukewarm proceduralism of Chief Justice Roberts or Justices Gorsuch and Kavanaugh has taught us anything, it’s that warriors don’t live in McLean and Bethesda. The new heroes of the conservative movement didn’t chase Olympus for personal profit; they went home to handle the hard work of making their hometowns better.

The Scalia for the Post-FedSoc Era

Many judges come from humble roots and give back to them. What sets Judge Matey apart as a man for a burgeoning movement is a jurisprudence that has galvanized the new legal conservatives just as Professor and Judge Scalia galvanized the old. Indeed, Scalia lit a fire in the academy by charting a course away from the Warren years with a message that placed legal text beyond the grasp of leftist judges by freezing its meaning at the day it was written—almost always a day more grounded in the values and traditions that conservatives seek to conserve. That message of textual focus, while a rote part of 1Ls’ education today, was radical when Scalia presented it to his classes at the Universities of Virginia and Chicago.  

Scalia’s legend stemmed in some part from his message, but perhaps in greater part from those who heard it: a growing legion of law students that had, often from personal experience, become disillusioned with the academy’s unthinking left-wing realism. They had come to see the Supreme Court for what it was—a legislature far more progressive than the one they’d elected—and they began to revolt. In 1982, that revolt bred the Federalist Society, a group whose initial mission was simply to achieve any quotient of intellectual diversity on law school campuses. Scalia’s voice dominated that earliest FedSoc circuit. Once ignited, the movement grew in leaps and bounds; by 1990 more than seventy law schools had a chapter of the Federalist Society, breathing some much-needed fresh air into the legal academy. Scalia wasn’t ahead of his time; he understood the challenge of his day and actively embraced it, wresting control of American legal culture back from the progressive left.

And so, in 2025, “we’re all textualists now.” Justice Kagan’s frank admission of that fact is the pride of the conservative legal movement. But it has also proven to be the sorrow, as it indicates a dilution of conservative methodologies, or even a profound complacency. If Elena Kagan is a textualist, how much can textualism really mean? Every Republican administration since Scalia’s nomination has prolonged that complacency by indulging the same fallacy: They all want the next Scalia. In seeking a new Scalia, successive Republican presidents have sought a man for a moment that’s long since passed. In turn, every circuit judge hoping for an appointment to the big bench has copied Scalian formalism; aspiring law clerks have reinvented themselves as equal parts virtuoso grammarian, amateur lexicographer, and expert historian.

And what of the Federalist Society, that mighty and feared agent of judicial revolt? “FedSoc” has become a big tent of law students and faculty who continue to fight the battles of 1985, presenting legal neutrality as an antidote to the wildly left-wing environment of elite law schools. Some good news for the droves of leftist law students who materialize to protest even the mildest conservative speaker: The Federalist Society’s not what you think it is. In 2025, a hardline pro-life view will get you a dirty look in a FedSoc meeting. An endorsement of traditional gender roles or marriage may well get you blackballed outright. Far from a scheming cabal, it’s become a club of neutral careerists with one or two marginal disagreements with the dominant campus left. And, as even the academic left indulges procedural formalism as a useful idiot, the legal field has once again returned to a sterile monoculture.  

As the Trump administration finds itself stymied by the courts at every turn in its quest to remove progressivism from the remaining two branches, young conservative lawyers are growing tired of a Scalian formalism that can’t stay out of its own way.

As such, history is repeating—but the needle has been pushed decisively rightward. As the Trump administration finds itself stymied by the courts at every turn in its quest to remove progressivism from the remaining two branches, young conservative lawyers are growing tired of a Scalian formalism that can’t stay out of its own way. They’re tired of fighting to work for “conservative” mentors only to find themselves surrounded by colleagues who share none of their first principles or moral groundings save for a general commitment to the text as a starting place. And as they watch artificial intelligences rapidly master the science of administering rote process with sterile language, they are waking up to formalism’s lifeless endgame. Disillusioned conservative students have increasingly carved out their own enclaves in smaller debate societies that resemble the Federalist Society’s earliest forms. Outposts of this new movement include the Edmund Burke Society at the University of Chicago, the Joseph Story Society at Harvard Law School, and the James Duane Society serving NYU and Columbia. To paraphrase Nietzsche, the eternal hourglass of legal conservatism is turned upside down once more. It’s 1986 again.

Judge Matey is the Scalian lion of the burgeoning new legal conservatism—and students have taken note. Students interested in clerking for Judge Matey must exhibit patience along with their superior academics: Unprecedented among federal judges, Judge Matey has filled all his clerkships through 2029, long after any present law students will have graduated. This excitement for any lower-court judge, much less one outside the prestige ladder of D.C. clerkships, testifies to up-and-comers’ desire to be in his orbit.

And his jurisprudence is the central attraction. Since his appointment to the federal bench in 2019, Judge Matey has shown a consistent willingness to break with doctrinaire textualism when warranted. In a set of remarks delivered at the University of Pennsylvania in 2023 and subsequently synthesized into a blockbuster essay, Judge Matey advocated for a return to classical legal thought grounded in historical continuity, moral reasoning, and judicial humility before tradition. One of the central objects of Matey’s critique was what he called “panel positivism,” a superficial adherence to originalism detached from the philosophical or historical foundations of legal authority.

What do Matey—and the young clerks and students who have been so drawn to him—look to in resolving a legal question? Perhaps it is easier to start with the shortcomings of the standard textual posture. When judges rely heavily on judicial methodology and doctrine, it is easier, tidier, and allows them to avoid the difficult task of searching through the deep roots of the legal tradition. “Judges demand freedom from deference so we can consider the law de novo,” Judge Matey writes. “And then, having announced our liberty from everything, we pick what de novo judging means.” It is a form of solipsistic jurisprudence whereby judges determine the standards, the legal doctrines, and frameworks to apply before judging accordingly. 

The textualist school, of course, is guilty of these faults as well. In choosing how to judge the meaning of laws, the source to consult, writes Matey, “is text. Or some text. Or only plain text (whatever that possibly means). Sometimes it means considering what the public thinks in the form of expertise or argument or interpretation, or regulation. Sometimes some, but not all, of these things.” In tying oneself to the text, the judge still finds a whole set of options available to him. Which text, and how much of it, should bind?

None of that’s to say that Judge Matey has jettisoned plain text.  But the inquiry doesn’t stop there. He cites Blackstone’s “fairest and most rational method to interpret the will of the legislator,” which is “by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.” 

The positivist textualist school is eager to turn to the words but will show varying degrees of hesitance in turning to other “signs” listed by Blackstone. Ignoring these signs with a singular fixation devoted to the text “necessarily reads past thousands of years before the founding, and hundreds after. And as [Adrian] Vermeule notes it brushes aside the foundational principles recognized in the Constitution, with its call to preserve liberty ‘not to maximize individual choice,’ but as a ‘teleological’ value ordered to the good.” 

A true jurisprudence is not ordered to whatever doctrinal methodologies are in vogue, but to the common good.

Thus, fidelity to the law involves more than interpreting words in isolation. It demands attention to context, purpose, and the enduring principles of justice. A true jurisprudence is not ordered to whatever doctrinal methodologies are in vogue, but to the common good. 

The commitment to judging in line with the common good is distinctly classical, and for that reason, it is by no means a novel development in the law. Matey praises Vermeule’s “deliberately unoriginal” theory of law as a model for how judges might reengage with a classical understanding, one that views law as teleological and moral, rooted in natural law, and aimed at the common good. The role of the judge is not to innovate but to remember, recovering the legal insights and intellectual habits long known to the Western legal tradition and the Founders themselves. 

Thus, the jurisprudence of Judge Matey is not innovative in any ordinary sense. Rather, its value lies in the fact that the classical legal tradition offers wisdom stretching back centuries. The modern American judge operates squarely within this tradition, whether he is attentive to it or not. Operating within this tradition demands intellectual humility, but this is well-appreciated by Judge Matey, who has proven himself to be a patient student of the classical legal tradition.

Closely connected is the use of natural law reasoning, a source of legal meaning that was widely accepted in the Anglo-American common law at the time of the Founding. This form of legal thinking accepts that there are objective rights and wrongs, even in the law, that are discoverable by reason and consideration of human nature, values that might be obvious from experience or custom but are not always reduced to the text of a law. Against this backdrop, our Founders ordered our Constitution, and it cannot be understood apart from that intellectual history. Much of American law functioned with these background principles in operation until the turn of the twentieth century, when it was replaced by a strict positivism: the words on the page are the whole of the law, and no other source of law has legitimate authority. In 1917, Justice Oliver Wendell Holmes, Jr., a leading proponent of this positivist turn, dismissed the notion of a received legal morality as a figment, a near-theological “brooding omnipresence in the sky.” Holmes’s view was fully embraced a generation later in Erie Railroad Company v. Tompkins, a 1938 case which declared that no “general law” (a concept related to natural law) could be employed by federal courts in resolving disputes not governed by the text of state law.

This form of legal thinking accepts that there are objective rights and wrongs, even in the law, that are discoverable by reason and consideration of human nature, values that might be obvious from experience or custom but are not always reduced to the text of a law.

Freed from the natural law tradition, courts were free to define and redefine the text of statutes, and any interpretation would do. The idea of “penumbras” and “emanations” from the constitutional text allowed mid-century justices to “discover” the rights to contraception, to abortion, to cohabitation, even to same-sex marriage. Against this development, textualism can only be a partial antidote, peeling away the worst excesses of these strained interpretations. Even this is an uncertain cure. The Court’s 2020 opinion in Bostock, for example, reasoned that a strict reading of the text of the Civil Rights Act of 1964 also prohibits discrimination on the bases of gender identity or sexual orientation. In so doing, fidelity to the text required unfaithfulness to the spirit and meaning of the act.

It is this infidelity that conservative judicial innovators like Judge Matey seek to resolve by rejecting the positivist turn and embracing the jurisprudential world of our Founders. Far from rejecting the natural law worldview as antiquated, modern conservative legal thinkers have revived natural law reasoning to fill the holes created by positivism and only partially filled by textualism. They accept certain objective truths outside of the law and recognize their import for legal disputes; one leading scholar, Joel Alicea, has even declared that we are living in a “natural law moment” for constitutional theory. 

Judge Matey demonstrated a strong grasp of natural law reasoning in sensitive constitutional settings in Range v. Attorney General, a consequential Third Circuit decision in 2024 concerning the right to bear arms. In his concurrence, Matey recognized that the right to keep and bear arms is “rooted in the natural law” and acknowledged the Founding-era agreement that the Second Amendment codifies “the great natural law of self-preservation” that gives rise to the necessity “for the [defense] of one’s person or house.” In a lengthy footnote to his opinion, Matey surveys a vast natural-law literature from the eighteenth century on the question of keeping arms and succinctly describes his deference to the natural law approach: “I follow the well-established practice of consulting classical authorities discussing natural law to inform the determination of written rights.” 

In a lengthy footnote to his opinion, Matey surveys a vast natural-law literature from the eighteenth century on the question of keeping arms and succinctly describes his deference to the natural law approach: “I follow the well-established practice of consulting classical authorities discussing natural law to inform the determination of written rights.”

Not only does this break with textualism and even originalism, it returns the constitutional analysis to the sources of law that the Founders lived and breathed. Acknowledging and furthering this development in conservative legal thinking not only places Judge Matey among the most cutting-edge conservative legal thinkers on the federal bench, but also signifies the bold new direction he would encourage for the Supreme Court should President Trump appoint him in the coming years.

When President Trump sits down to deliberate on his next Supreme Court appointment, he’d do well to consider where the lambs of his first term have gotten him, along with the apparatus that commended them to his attention. He should compare the work of Justice Alito (far and away the Court’s closest approximation of a Vermeulian jurist) and Justice Thomas to that of Roberts, Gorsuch, Kavanaugh, and Barrett. He should place his finger on the pulse of the new conservatism, the conservatism that railed against the sterility of Biden-era proceduralism and catapulted him back to the White House to stamp it out.  

And he should pick a lion. A man for this moment and the moment to come. He should pick Judge Paul Matey.