“The Constitution,” according to President Trump’s nominee to the Supreme Court, Neil Gorsuch, “isn’t some inkblot on which litigants may project their hopes and dreams … but a carefully drafted text judges are charged with applying according to its original public meaning.”
It’s a philosophy befitting the replacement of Justice Antonin Scalia, the ardent, colorful textualist who passed away last year. Justice Scalia was no doubt one of a kind, an institution in his own right who will live on through his enormous contribution to originalist jurisprudence. But, never one for ego, Scalia will be much more satisfied knowing that his legacy will be carried on by his replacement on the court.
Judge Gorsuch’s legal philosophy, and his commitment to Scalia’s legacy, is perhaps best explained in a tribute the former gave after the latter’s death. It read in part:
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 — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best. As Justice Scalia put it, “if you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
The sentiment should warm the hearts of conservatives, who have long argued that judges should be in the business of applying the law, not making the law, a power that the Constitution vests solely in the people, exercised through their representatives in Congress. Too often the Court has attempted to discern “intent” or “purpose,” which led to judged becoming an unelected, shadow legislating body.
Scalia, who had no patience for this extra-textual evolution, said in one scathing dissent, “We are a government of laws, not of committee reports.”
Of course, Gorsuch can’t be expected to share a flair for the dramatic. And yet, in his own way, his words are just as powerful.
“I respect … the fact that in our legal order it is for Congress and not the courts to write new laws,” Grouch said, as Trump looked on. “It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is a really bad judge, stretching for results he prefers rather than those the law demands.”
In some ways it’s that idea that should also allay the fears of liberals, who have long seen textualism as merely window-dressing for conservatism. As Jeffrey Rosen of the National Constitution Center tells Politico:
“Like Justice Scalia, he sometimes reaches results that favor liberals when he thinks the history or text of the Constitution or the law require it, especially in areas like criminal law or the rights of religious minorities, but unlike Scalia’s he’s less welling to defer to regulations and might be more willing to second-guess Trump’s regulatory decision.”
One such situation occurred in the 2012 case, U.S. v. Games-Perez, which turned on the interpretation of a federal statute that authorizes prison terms for anyone who “knowingly violates” a ban on the possession of firearms by a convicted felon. Games-Perez argued that although he knew he had a weapon, he did not know he was a felon (the result of a misunderstood plea deal). Judge Gorsuch ultimately concurred in a decision that Games-Perez could be imprisoned, purely because he felt beholden to precedent, but argued strenuously that the conviction should have been overturned based on the statute.
“Our duty to follow precedent sometimes requires us to make mistakes. Unfortunately, this is that sort of case,” Gorsuch began.
“I recognize that precedent compels me to join the court’s judgement,” he concludes.” But Candor also compels me to suggest that we might be better off applying the law Congress wrote than the one [the precedent] hypothesized. It is a perfectly clear law as it is written, plain it its terms, straightforward in its application. Of course, if Congress wishes to revise the plain terms of [the statute], it is free to do so at any time. But there is simply no right reason for this court to be in that business.”
The conclusion, whether he intended it or not, happens to also be a perfect crystallization of Gorsuch as a judge – compelled by duty, beholden to the law, clear, straightforward, and deferential to Congress. The only thing missing would be “brilliant.”