“With all due respect, it’s not the Kennedys’ seat, and it’s not the Democrats’ seat. It’s the people seat.” That line did more to win Scott Brown the Massachusetts Senate office previously occupied by Ted Kennedy than anything else.
But in the case of the Supreme Court position vacated last year after Antonin Scalia passed away, it is the Scalia seat, not the people’s seat, and not only because the Constitution purposefully shields SCOTUS justices from the whimsies of the people. Scalia was a luminous talent whose decadently acidic writings (“the secretary of health and human services is not a State”) and nimble mind beaconed across generations of legal thinking. With Republicans in full control of the elected federal government, his replacement should be someone who can shoulder his legacy, both in originality of thought and originalism in jurisprudence.
Fortunately, Donald Trump’s nominee Neil Gorsuch seems up for the job. Not only is he dutiful to the law, he may play a valuable role in the years to come.
Gorsuch’s originalist and textualist credentials are beyond dispute. His most concise statement of his views can be found in Cordova v. City of Albuquerque: “Ours isn’t the job of interpreting the Constitution,” he writes. “And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.” That aligns evenly with Scalia’s reading: “The Constitution is not a living organism. It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.”
A common theme in Gorsuch’s writings is emblazoning the differences between legislators and judges, the former of whom are tasked with making the law and the latter with interpreting and applying it. He’s a foe of what conservatives call “judicial activism,” meaning courts inventing new laws and rights out of the cloth.
Gorsuch is pro-gun rights and pro-life. On the Tenth Circuit Court of Appeals, he took an expansive view of religious liberty, ruling in Hobby Lobby v. Sebelius that the federal Religious Freedom Restoration Act applied to the store chain Hobby Lobby, which disagreed with Obamacare’s contraception mandate, and dissenting when the court ruled against the Little Sisters of the Poor in a similar case.
As Jack Hunter notes, Gorsuch also believes in an ample Fourth Amendment, even arguing in one dissent that a “No Trespassing” sign should be sufficient to stop police from knocking on a door if they don’t have a warrant. Among the more overlooked components of Scalia’s thinking was his civil libertarian streak; there’s reason to believe Gorsuch will further that tradition.
But Gorsuch’s most intriguing and possibly most useful views are on what’s called “Chevron deference.” This refers back to the 1984 Supreme Court case Chevron v. Natural Resources Defense Council, in which the NRDC, an environmental activist group, sued Ronald Reagan’s EPA after the agency relaxed its polluting standards. The Court found in the EPA’s favor, which seems like a victory for conservatives, but hold up. The opinion, penned by liberal stalwart John Paul Stevens, gave federal agencies wide latitude in interpreting ambiguous statutes. This resulted in judges giving their imprimaturs to insane lawmaking by bureaucrats, including one case in which courts affirmed that the Department of Commerce could literally interpret the same statute two different ways under two different sets of circumstances.
Gorsuch is skeptical of Chevron deference, which he calls a “judge-made doctrine for the abdication of the judicial duty.” It’s the judiciary, he says, not the bureaucracy, that’s charged with applying the law. In a concurring opinion in Gutierrez-Brizuela v. Lynch, he observes that under Chevron deference “an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive).” It’s the usurpation of constitutional government by the federal bureaucracy, in other words.
The activism of administrative agencies like the EPA, which use their broad regulatory authority to do pretty much whatever they want, is one of our government’s most pressing problems. Donald Trump has vowed to humble the regulatory goliath. His attempts to do so will no doubt draw lawsuits, which could end up before the Supreme Court. Gorsuch’s cool attitude towards the bureaucracy, his insistence on vesting power with our constitutionally prescribed branches of government, could make all the difference. Conservatives, libertarians, textualists, and Scalia fanboys alike should be pleased with this nomination.