Judge Neil Gorsuch, a judge who values “courage”
President Donald Trump has nominated Appeals Court Judge Neil Gorsuch to fill the seat of the late Justice Antonin Scalia. Put simply, Gorsuch’s judicial philosophy is to respect the text (textualism) of the Constitution and the intent of its original writers (originalism). In the area of substantive rights, he champions religious liberty and values human life. In the area of governmental regulation, he believes that administrative agencies have been given too much deference by the courts. He possesses sterling credentials and a judicial demeanor and temperament. Despite a quiet manner, he is a judge who values “courage,” as acknowledged in his acceptance remarks and in his characterization of one of the justices under which he served, Byron White, who Gorsuch described as one of the “most courageous men I’ve ever known.” He is a fitting and worthy successor to Scalia, a man he called “a lion of the law.”
Judicial Philosophy. There is no doubt about how Judge Gorsuch will read the Constitution and the statutes passed by Congress. He will accord them respect, searching for the discernible original intent of the Constitution’s framers while paying attention to the plain meaning of the texts that come before him. His acceptance remarks reveal his judicial philosophy: “I respect too, the fact that in our legal order it is for Congress and not the courts to write new laws. 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 very likely a bad judge stretching for results he prefers rather than those the law demands.”
What Judge Gorsuch is emphasizing is that it is not a justice’s place to ignore or strain the meaning of a Constitutional provision or statute in order to further a current culturally popular view that the justice finds compelling or that some Americans find compelling. He has maintained in earlier writings that American liberalism has “become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.” He is simply saying that these issues are better argued in “the legislative arena.” By making the courts the arbiters of these disputes, “we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.” Like Justice Scalia, Judge Gorsuch does not appear to be opposed to the people making changes to the Constitution. After all, Americans have chosen to amend the Constitution in significant ways 17 times since the original Bill of Rights was ratified. It is the people, however, who must decide about such fundamental changes, not nine appointed judges.
Gorsuch’s judicial philosophy is to respect the text (textualism) of the Constitution and the intent of its original writers (originalism). In the area of substantive rights, he champions religious liberty and values human life.
Religious Liberty. Judge Gorsuch, writing a concurring opinion in Hobby Lobby v. Sebelius, maintained that the mandate of President Obama’s Affordable Care Act, which required the owners of Hobby Lobby Stores (the Greens) to furnish abortion-inducing drugs to their employees as part of the stores’ health plans, “infringes the Greens’ religious liberties by requiring them to lend what their religion teaches to be an impermissible degree of assistance to the commission of what their religion teaches to be a moral wrong.” Later in the opinion, he referred to the “choice” that the Greens had as a “Hobson’s choice;” that is, “a choice between abiding their religion and saving their business.” That is, in essence, no real choice at all. Likewise, in the case of the Little Sisters of the Poor, which was heard in the Tenth Circuit, Judge Gorsuch joined with four other judges in opposing the decision against the Sisters, saying in part: “When a law demands that a person do something the person considers sinful, and the penalty for the refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion.” He fully understands how federal and state agencies are gradually whittling away at the freedom of religion of Americans.
Right to Life. Judge Gorsuch can expect to hear some tough questions during his confirmation hearings on the matter of Roe v. Wade. The questioning may begin with whether or not he believes that Roe v. Wade is “settled law,” meaning that it cannot be reversed, since it has been the law for four decades. Judge Gorsuch has shown that he has a high regard for the doctrine of stare decisis, the common judicial practice of following previous decisions, an important legal principle by which judges generally abide. He is co-author of a book on judicial precedent. However, in all probability, the nominee will maintain that stare decisis is not an absolute when an earlier decision is on shaky ground. Thus, for example, he has shown a willingness in the regulatory agency area to openly and repeatedly question something called the Chevron doctrine, based on a case which requires judges to defer to an administrative agency’s interpretation of the statute it is administering if the statute is deemed vague. The Chevron decision is over 30 years old. Though Gorsuch has not been called upon to rule in a case where Roe was in question, it is likely that he will regard Roe as open to reconsideration regardless of the fact that it has been in effect for decades. Longevity is not the same as constitutionality.
The best indicator of Gorsuch’s stance on the importance of protecting life comes from his book on assisted suicide and euthanasia. He has written one of the definitive books on all aspects of the proposed legalization of those two life-ending acts, and has concluded that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.” It is also worth pointing out that his mentor, Justice Byron White, was one of two dissenters in Roe. White minced no words expressing his conviction that the majority opinion in Roe lacked any grounding in the Constitution. Calling the decision “an exercise in raw judicial power,” White wrote: “The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.” White’s dissent would seem to square both with Gorsuch’s view of life and his restrained view of what courts should and should not be doing. In raising questions about the legal legitimacy of Roe, Gorsuch would align himself with the thinking of Scalia and certain current members of the court, like Clarence Thomas and Samuel Alito.
As for the “liberty” language of the Due Process Clause of the 14th Amendment, which later abortion cases made the basis for the supposed right to abortion, Gorsuch, in his book on assisted suicide and euthanasia, seems to reject using the 14th Amendment “liberty” language to justify heretofore unknown rights, like abortion. Otherwise, liberty becomes a broad charter for the arrogant judicial creation of what is, in effect, a new Bill of Rights. Gorsuch argues that judges have no Constitutional mandate to discover new, heretofore unknown substantive rights within the Due Process Clause.
Judge Neil Gorsuch will likely face considerable hostility in his Senate confirmation hearings. Nonetheless, the keenness of the intellect he possesses, the experience and courage he brings to the position, plus the fact that he represents an ever-growing body of scholars, judges, and practitioners whose defense of traditional constitutionalism is now well-developed and flourishing, will see him through.