The Troubling Legal Philosophy of Neil Gorsuch
On January 31, President Trump announced his choice of Judge Neil Gorsuch to fill the Supreme Court vacancy created by Justice Antonin Scalia’s death. The battle over Judge Gorsuch’s confirmation is certain to be contentious; before the president had even made a final decision, Senate Minority Leader Chuck Schumer had vowed that the Democrats would filibuster any nominee on the Trump administration’s short-list. The opposition of Schumer and other Democrats has relatively little to do with Judge Gorsuch himself. Rather, Congressional Democrats are smarting over the refusal of Senate Republicans to consider the nomination of Judge Merrick Garland for that same vacancy during the last ten months of the Obama administration. They insist that the Republican maneuver constitutes a “theft” of a Supreme Court seat that was rightly theirs, and argue that any nominee other than Garland is illegitimate. As the tagline for David Leonhardt’s New York Times editorial asserts, “It’s not about the nominee. It’s about an illegitimate process.”
What little conversation there has been about Gorsuch has focused on his admittedly impressive qualifications. Minutes after his nomination, a glowing testimonial to Gorsuch appeared in the Times from the Obama administration’s former Acting Solicitor General Neal Katyal. Katyal wrote, “ I have seen him up close and in action, both in court and on the Federal Appellate Rules Committee (where both of us serve); he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.” An Andrew Hamm article for SCOTUSblog observes, “Gorsuch has… modeled judicial conduct off the bench.” Nearly every summary of Gorsuch’s background mentions his education at Columbia and Harvard, as well as his ten years of experience on the 10th Circuit Court of Appeals.
These considerations obscure the factor most relevant to Gorsuch’s nomination to the Supreme Court: his alleged commitment to originalism. Over the past thirty years, this legal philosophy has slowly crept into the conservative mainstream, aided by the prominence of originalists such as Scalia and Justice Clarence Thomas. In conservative legal circles, originalism is often celebrated, and an originalist nominee seems a natural choice for a conservative president. In short, originalism has been normalized.
But we should make no mistake — originalism is an intellectually dishonest philosophy bent on anchoring America firmly in history’s nightmares. It is a method of constitutional interpretation ill-suited for the diverse, evolving society that is the United States, and Gorsuch’s embrace of this regressive doctrine should raise serious questions about his suitability for the Supreme Court.
Originalism was born as a solution to an imaginary problem. Between 1954 and 1976, the Supreme Court reinvigorated the Constitution, breathing life into the dormant promises of the Bill of Rights and 14th Amendment. Led by Earl Warren and William Brennan, the Court established the rights we take for granted today: the right to an attorney, to be warned against self-incrimination, to go to school with children of different skin colors, to marry the person you love regardless of race. These innovations were welcomed by the public at large, but stridently opposed by a vocal minority who believed that the Justices were “making law.” These conservatives believed that the Supreme Court was usurping the rights of the people to legislate through Congress and the States, and sought a way to constrain “activist judges.” Originalism provided a means of to doing. By limiting the meaning of Constitutional provisions to the intent of the Constitution’s Framers, originalists believed they could provide an objective standard for constitutional interpretation, and prevent rogue judges from rewriting the law to suit their own preferences.
Of course, nothing like the “rewriting” these conservatives feared was actually occurring. A majority of Americans supported Brown v. Board of Education from the moment it was decided, and to mollify Southern racists, the implementation of its decision was effectively stayed for years. Indeed, the Supreme Court’s Justices have long been wary of getting too far out in front of public opinion. They are acutely aware that they rely on the other branches of government to enforce their orders, and realize that their institutional power rests on the acquiescence of those branches. Justices remember the tragic consequences of Andrew Jackson refusal to respect the Court’s authority in Worcester v. Georgia, and are determined to yield decisions that the president and states will enforce. This caution ensures that the Court stays within reasonable parameters when construing the Constitution.
Nevertheless, the myth of the activist judge endured, and originalism gained prominence as a means of combating this supposed evil. By the 1980s, it had grown into two distinct branches: the “original intent” originalism and “public meaning” originalism. The former was slightly older (becoming intellectually salient in the early 1980s), and was the brainchild of conservative jurist Robert Bork. According to the “original intent” school, judges should interpret constitutional ambiguities as they believed the Constitution’s framers would have. It asks a judge to be a part-time historian, scouring James Madison’s notes and the transcripts of ratification debates for evidence as to what delegates to the 1787 Constitutional Convention thought they were signing. By limiting the meaning of the Constitution to the ideas of these men, “original intent” originalists believed that they could prevent judges from endowing constitutional provisions with their own idiosyncratic preferences.
The “original intent” variation of originalism, however, has an obvious flaw: the “Framers” who adopted the Constitution had widely divergent views. Some, like James Madison and Alexander Hamilton, initially pictured an active federal government while others like Thomas Jefferson (who admittedly did not attend the constitutional convention) construed Congress’ mandate as a limited one, concerning only those issues that absolutely required collective action. Indeed, during George Washington’s administration, Hamilton and Jefferson engaged in a historic internal clash over the scope of the Commerce Clause, a battle recounted in high school history classes every year. This conflict was merely one in a long series of clashes between Hamilton’s Federalists and Jefferson’s Democratic-Republicans over extent of federal power. Moreover, we do not have a wholly accurate record of exactly what each framer thought during that Philadelphia summer in 1787 — no official transcript of proceedings exists, leaving us with James Madison’s notes as the most authoritative record of what went on. Since Madison heavily edited his recollections, it is not clear that understanding the intentions of the framers at the moment of founding is even possible. Between these shaded notes and the documented variations among the founders’ views, searching for an authoritative interpretation of particular constitutional provisions seems a fool’s errand.
Perhaps anticipating some of these problems, Antonin Scalia chose to embrace a more nuanced style of originalism during his judicial career. His “public meaning” originalism focused not on the minutia of the founder’s deliberations, but rather on what a citizen of the United States would have thought constitutional provisions meant at the time of their enactment. Scalia’s originalism is more plausible than Bork’s. While divergence between the framers’ views makes synthesizing a single “intent” impossible, one might conceivably argue that the Constitution’s words had an common meaning to most eighteenth century Americans. As such, Scalia could believably claim to be providing an objective foundation for constitutional jurisprudence.
In reality, however, it is infeasible to determine precisely what an average English speaker would take each constitutional provision to mean in the 1700s. The reason controversial constitutional clauses require interpretation is because their scope was unclear even to America’s earliest citizens. No one is asking what the framers meant by “six years” when they specified Senate terms. We fight today over the Commerce Clause and the 14th Amendment because phrases like “commerce… among several states” and “equal protection of the laws” are inherently ambiguous. The clouds of uncertainty don’t magically part when we consult eighteenth century dictionaries and Blackstone’s Commentaries — the diametrically opposed originalist opinions in District of Columbia v. Heller are proof enough of that. Like any other legal philosophy, public meaning originalism can be massaged to support both sides of constitutional disputes, and its high priests have no superior claim to objectivity.
Of course, more dangerous than originalism’s dubious intellectual merits are the actual policies its adherents endorse. Committed originalists such as Clarence Thomas treat modern constitutional jurisprudence with thinly veiled contempt, and countenance a return to outdated standards of decency. In the 2008 case Baze v. Rees, Justice Thomas went so far as to announce that the 8th Amendment (which prohibits cruel and unusual punishment) prohibits only capital sentences which aim at the “intentional infliction of gratuitous pain.” Painful executions are fine; only intentionally excessive suffering would tempt Justice Thomas to intervene. Justice Thomas further argues that the original understanding of the 8th Amendment limits its protection to cruel and unusual sentences; inhumane treatment of incarcerated individuals by corrections officers falls outside its scope. In short, as long as you are not formally sentenced to a beating, the 8th Amendment cannot protect you from a sadistic prison guard.
Originalism stands opposed to many other facets of our modern legal regime. It finds no place for abortion rights, nor does it provide protections for consenting adults participating in same-sex relations; it seeks to render the federal government impotent; and, according to some, it permits individual states to take openly religious positions. It allows for the execution of mentally handicapped individuals and minors. And at its core, it rejects the notion that the Constitution’s protection and guidance evolves to match our society’s maturation. An originalist could hardly accept the Supreme Court’s landmark decision in Brown v. Board of Education, as segregated schools were the norm when the 14th Amendment was adopted. Loving v. Virginia, the case which allowed interracial couples to marry, would be wrongly decided in the mind of an originalist. After all, the principal architect of the Equal Protection Clause came from Ohio, a state with anti-miscegenation laws in place. In countless other cases, originalism would unabashedly reject the Constitutional understandings that undergird modern American law. It’s no wonder that Justice Scalia once claimed to be only a “faint-hearted” originalist.
With these considerations in mind, let’s return to the question of Judge Gorsuch’s nomination. There is little doubt that Gorsuch adheres to originalism; his former clerks say so, as does The New York Times and SCOTUSblog. In an April 2016 speech at Case Western Reserve Law School, Gorsuch admitted as much, declaring, “That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be…” (emphasis added). Referencing the need to “focus backwards” and consider “a reasonable reader at the time,” Gorsuch squarely positioned himself as a jurist in the mold of Scalia.
Academic studies of Gorsuch’s Appeals Court decisions have confirmed this impression, and in fact suggest that Gorsuch would rule from Scalia’s ideological right on the Supreme Court. Regarding government displays of religiosity, women’s rights, capital punishment, and abortion, Gorsuch matches Scalia conservative-step-for-conservative-step. But even more so than Justice Scalia, Gorsuch’s evinces hostility towards the modern administrative state. Concurring in United States v. Hinckley, he suggested that courts should rigorously enforce the so-called “nondelegation doctrine,” a legal theory which holds that Congress generally cannot delegate parts of its lawmaking authority to the executive branch. While such a position may not appear extreme, it is indicative of a larger prejudice against government regulation. Gorsuch is also skeptical about the “Chevron Doctrine,” a legal rule which holds that courts should give deference to a regulatory agency’s expert interpretation their authorizing statutes. Together, these two stances suggest that Gorsuch is committed to curtailing the activities of the EPA, SEC, and the Justice Department.
Given this record and Gorsuch’s legal philosophy, it is difficult to imagine him protecting the crucial rights and interests of American citizens on the Supreme Court. The Senate owes it to the nation to careful scrutinize his nomination, and to deny him confirmation if he holds firm to his current positions. Nearly thirty years ago, the Senate famously rejected Gorsuch’s ideological ancestor, Robert Bork, finding Bork’s jurisprudence too backwards for the 1980s United States; accepting Judge Gorsuch now would signify a dangerous recession in our national maturity.