Three Questions Senators Must Ask Judge Gorsuch

Gorsuch’s Views on Civil Rights Critical as Nation Grapples with Racial Justice Issues

By Todd A. Cox, LDF Director of Policy

Today, as the Judiciary Committee begins in earnest its questioning of Judge Neil Gorsuch about his nomination to the Supreme Court of the United States, the Senators are sure to raise a range of very important constitutional and philosophic questions. But with limited time available and so many issues to discuss, LDF has identified the three key questions Senators should ask about Judge Gorsuch’s record on civil rights.

1. Under your originalist approach to interpreting the Constitution, was Brown v. Board of Education rightly decided — and if so, how specifically?

Potential follow-up questions:

- Likewise, under an originalist interpretation of the Constitution, was Loving v. Virginia rightly decided — and if so how?

- Is the history or original meaning of the 13th, 14th and 15th Amendments — or the Civil War Amendments — relevant to interpreting those provisions today? If so, which of the drafters or their statements would you consider in construing, for example, the Fourteenth Amendment?

- Brown was a unanimous decision in 1954, but just 68 years earlier, the Supreme Court upheld segregation in a 7–1 vote in Plessy v. Ferguson. What changed in terms of the original meaning (or intent) of the Constitution?

Why this matters:

Judge Gorsuch has publicly committed himself to being an originalist in the mold of Justice Scalia. But “original intent” as the guiding principle of constitutional meaning is potentially deeply problematic — at least because when the Constitution was written, the courts and the country allowed a variety of laws we now consider to be bad: for example, state-enforced slavery and human trafficking, state-enforced segregation, bans on interracial marriage, and the criminalization of gay and lesbian individuals. Under a straightforward originalist approach, many of these laws would presumably be constitutional and Supreme Court precedent like Brown v. Board of Education , which struck down segregation; Loving v. Virginia, which made interracial marriage legal; and, Obergefell v. Hodges, which made same-sex marriage legal could all be in jeopardy.

2. Why do you believe litigation about the immunity of state officials who have violated the constitution are “small” cases and therefore not “the right place to decide large new issues of constitutional law.” Kerns v. Bader, 663 F.3d 1173, 1187 (10th Cir. 2011)?

Potential follow-up questions:

- Don’t federal courts have a unique and important role in developing and applying constitutional law, for example, regarding excessive force by police?

- Relatedly, in several of your opinions you propose a novel theory of abstention, whereby federal courts should generally abstain and leave constitutional law claims to state courts that you think could be addressed under state tort law. Doesn’t that view squarely contradict the history and purpose of section 1983? Is it generally appropriate for circuit court judges to proactively advance new legal arguments that were not raised below or briefed on appeal?

Why this matters:

The ability to seek justice and structural reform through the courts has proven to be essential to remedying serious constitutional violations, including excessive force and deaths at the hands of state officials, such as police officers, as well as overt racial profiling and discrimination. Historically, a core purpose of Section 1983 (enacted to provide private civil remedies for civil rights violations) and the Civil War Amendments was to make federal courts available for legal relief, since federal judges have lifetime appointments and are less likely to be swayed by local judicial elections and intra-state pressures.

3. Why do you believe, as you wrote in 2005, that “American liberals have become addicted to the courtroom,” improperly using constitutional litigation to “effect[]their social agenda[] on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.”

Potential follow-up questions:

- Notably absent from your piece was any criticism of conservatives using the courts to attack, for example, the Voting Rights Act. Would you care to revise your statement?

- Especially since you have both criticized the use of litigation to achieve policy goals, and stressed the limited role of federal courts, do you believe it was appropriate for a justice to signal his or her views on the Voting Rights Act, essentially inviting litigation to challenge the constitutionality of parts of the Act?

Why this matters:

Constitutional litigation has proven to be an essential means of advancing equality and justice for all, including the Supreme Court’s landmark decision in Brown v. Board of Education. Moreover, claims of judicial activism have been selectively used to resist civil rights advances, including in Brown, where states made similar criticism of the Supreme Court’s ruling. Meanwhile, conservative advocacy groups have regularly manufactured cases to try to take certain issues to the Supreme Court and overturn established precedent — including challenges to Roe v. Wade, affirmative action, campaign finance laws, and the Affordable Care Act.

In this critical moment, as the nation continues to grapple with issues of racial justice in an increasingly decisive environment, it’s incredibly important that the Senators and our country learn exactly where Gorsuch stands.