“Neil Gorsuch, Donald Trump’s Supreme Court nominee, is a brilliant, witty, handsome, eloquent, perfectly pedigreed judge. He is, to put it another way, an extraordinarily difficult jurist for Democrats to oppose.” – Slate’s Mark Joseph Stern on Jan. 31, 2017
“Gorsuch is the worst kind of justice. He is a reactionary who dresses up his cruel, antediluvian views in folksy charm; who professes restraint while espousing extreme, sweeping views; who has no sympathy for vulnerable minorities but believes Christians are being oppressed. And he will guide the course of the law for the next 30 years or more. He is a catastrophe for proponents of civil rights and equal justice.” – Slate’s Mark Joseph Stern on Jun. 26, 2017
It’s safe to assume that Justice Gorsuch didn’t turn from “brilliant” and “perfectly pedigreed” to “cruel” and “extreme” over the course of five months. The man is, as he always was, a textualist in the mold of Scalia, who believes that a judge’s mission is to apply the law as it is, not to interpret the law as they want it to be. What has changed is the rubric by which the media is judging Gorsuch. They’re now demanding not just a flawless pedigree, they’re asking for unwavering fealty to liberal policies.
That’s not how the law works. Or at least, that’s not how it should work.
So when Stern describes Gorsuch as “everything that liberals had most feared,” which in this case means “pro-gun, pro-travel ban, anti-gay, anti-church/state separation,” it’s a fundamentally flawed rubric. Gorsuch may very well hold each of these beliefs personally, but none of the Supreme Court opinions he has contributed to thus far are evidence of them. Rather, he’s squarely focused on two questions: What is the plain meaning of the statute in question? And, is allowable under the Constitution?
As to the first question, writing for a unanimous court in Henson v. Santander Consumer USA, Gorsuch held that the Fair Debt Collection Practices Act doesn’t apply to companies that buy debt and then try to collect it. Not the most tantalizing of fact patterns, but it offered the opportunity for Gorsuch to show off his rhetorical flair and penchant for textualism.
“The evolution of the debt collection business might invite reasonable disagreements on whether Congress should reenter the field and alter judgments it made in the past,” he argued.
But, he added:
“Constant competition between constable and quarry, regulator and regulated, can come as no surprise in our changing world. But neither should the proper role of the judiciary in that process – to apply, not amend, the work of the People’s representatives.”
Justice Gorsuch pursued a similar line of thought in the case of Maslenjak v. United States, which dealt with the question of whether the government could revoke a naturalized citizen’s citizenship over lies made during the application process. The Court unanimously found that the government must establish causation, i.e. that the defendant’s illegal act must have played a role in the acquisition of citizenship. Justice Gorsuch agreed, but argued that’s where the Court should have stopped rather than opine more broadly about the contours of the causal test.
“Respectfully, it seems to me at least reasonably possible that the crucible of adversarial testing on which we usually depend, along with the experience of our thoughtful colleagues on the district and circuit benches, could yield insights (or reveal pitfalls) we cannot muster guided only by our own lights. . . . .” Gorsuch writes. “For my part, I believe it is work enough for the day to recognize that the statute requires some proof of causation, that the jury instructions here did not, and to allow the parties and courts of appeals to take it from there as they usually do. This Court often speaks most wisely when it speaks last.”
In the case of Perry v. Merit Systems Protection Board, Justice Gorsuch joined a dissent that argued the Court was once again going too far. It begins:
“Anthony Perry asks us to tweak a congressional statute—just a little—so that it might (he says) work a bit more efficiently. No doubt his invitation is well meaning. But it’s one we should decline all the same.”
“If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty,” Gorsuch continued.
Invariably, these are not the opinions that most anger liberals. They dislike textualism’s outcomes, but only when it comes attached to sexy fact patterns. I
And they got them in several of Gorsuch’s writings. In Pavan v. Smith, for example, which dealt with two female same-sex couples who fought the Arkansas Department of Health’s policy to only bear the birth mother’s name rather than the female spouse. In a per curium opinion (one in which the opinion is attributed to the name of the Court rather than a specific author) the Court held that this created a situation in which same-sex parents lacked the same rights afforded to opposite-sex parents. Gorsuch dissented, arguing that summary reversal is “strong medicine” given that the underlying statute doesn’t offend any precedent and has a rational basis in “ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders.”
In the end, Gorsuch argues, the Court is going beyond what has been asked of it because the State has already conceded that certain benefits must be afforded to same-sex couples and because the petitioners failed to make an issue out of the statutory provision that the Court chose to focus on.
“Given all this, it seems far from clear what here warrants the strong medicine of summary reversal. Indeed, it is not even clear what the Court expects to happen on remand that hasn’t happened already,” Gorsuch writes. “The Court does not offer any remedial suggestion, and none leaps to mind.”
Although Gorsuch was not the author, liberals will also find fault in Gorsuch’s decision dissent from the Court’s opinion not to hear Peruta v. California, which serves to uphold the Golden State’s ability to restrict concealed-carry permits to owners who can show “good cause” as determined by county sheriffs.
“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous,” Justice Thomas wrote in dissent. “But the Framers made a clear choice. They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.”
And hackles will surely be raised at Gorsuch’s decision to join a concurring opinion in the “travel ban” decision, Trump v. International Refugee Assistance Project, arguing that the travel ban should be instated fully until oral arguments can be heard in October.
Justice Thomas, who wrote the concurrence, believed that the Court was creating a remedy that would “prove unworkable,” by allowing foreign nationals with a “bona fide relationship with a person or entity in the United States” to be eligible to receive a visa. This, Thomas argued, goes beyond the court’s role to provide relief to claimants who have or will suffer harm, and instead infringes on the “political branches” whose role is to “shape the institutions of government in such fashion as to comply with the laws and the Constitution.”
That last line is the thread that binds all of these decisions together. Gorsuch firmly believes that the court’s role is to call balls and strikes—whether something is constitutional or not—but it is up to elected officials, who are responsible to the people who elected them, to throw the pitch.
Does that make him cruel or unsympathetic to the oppressed? Does it make him, as one Democratic senator described, one of “the three horsemen of the apocalypse”? Only if you want judged to make decisions purely based on who is helped or hurt, a test so subjective that will inevitably lead to abuse. What Gorsuch chooses instead is to make decisions based on the rule of law, which as Ronald Cass writes in USA Today, should provide comfort to everyone, if not lefty editorialists.
Despite the cartoon-version descriptions of a judge who “has sided” with the wrong people, the judge’s job isn’t to choose David vs. Goliath, to stand up for the little guy, to smack down the big guy.
The way little guys get protected isn’t to have a judge who votes on his or her gut sympathies. Instead, it’s to have a legal system that functions according to rules, legitimately enacted by constitutionally appropriate bodies and procedures, enforced in principled, predictable ways by judges who read the law carefully and apply it as written, no matter what the judge feels about the people on either side of the case.
Attacks on Justice Gorsuch were inevitable. He carries the Trump brand at a time when criticizing everything about this administration is chic. He’s also outspoken and assertive “in a way that is really without precedent for a justice in the modern court,” which gives plenty of ammunition for critics. So sure, liberals can write that he’s everything they feared and conservatives can respond that he’s everything they hoped, but at his core Gorsuch is, as he was billed to be: smart, earnest, and with a deep respect for the rule of law. The United States could have done worse, much worse.