This column by ACRU Policy Board member Hans von Spakovsky was published February 2, 2017 by Conservative Review.
When President Donald Trump introduced his pick for the U.S. Supreme Court at the White House Tuesday night, he told the American people that he had kept his campaign promise “to select someone who respects our laws… and who loves our Constitution and someone who will interpret them as written.”
With the nomination of Tenth Circuit Judge Neil Gorsuch, Trump has indeed kept his word. Gorsuch’s record as a lawyer, judge, and legal intellectual demonstrates that he is indeed a constitutional textualist who believes, as he said in a 2016 speech on the passing of Justice Antonin Scalia at Case Western, that judges must:
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.
Gorsuch confirmed that this is his view of the proper role of a judge when he spoke to the invited crowd of administration supporters at the White House, and said something that many liberals — including some who sit on our federal courts — disagree with:
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.
Most importantly, Gorsuch has demonstrated that same approach in numerous opinions upholding basic rights in the Bill of Rights. In Riddle v. Hickenlooper, for example, he concurred in an opinion that tossed out a law setting different campaign contribution limits for major and minor party candidates. As he said, no one can dispute:
that the act of contributing to political campaigns implicates a ‘basic constitutional freedom,’ one lying ‘at the foundation of a free society’ and enjoying a significant relationship to the right to speak and associate — both expressly protected First Amendment activities.
This is very important because the Supreme Court has had a series of cases in recent years involving restrictions on campaign financing and speech that the liberal justices on the Court have refused to recognize as violating the First Amendment right to freely associate and engage in political activity. Justice Scalia was the needed fifth vote in these cases, such as Citizens United v. FEC, so it is vital that the new justice be someone like Gorsuch who has shown a firm commitment to upholding the First Amendment in the area of political speech and political activity.
In cases ranging from Hobby Lobby v. Burwell to Little Sisters of the Poor v. Burwell to Summum v. Pleasant Grove City, Gorsuch either joined majority opinions or filed dissents upholding the religious freedom rights of citizens under the First Amendment or the Religious Freedom Restoration Act, particularly their right to be protected from undue burdens imposed by the government that violate their religious beliefs. And that includes dissents criticizing the Supreme Court in American Atheists Inc. v. Davenport and Green v. Haskel County Board of Commissioners for creating a test that is far too likely to find supposedly impermissible endorsements of religion by the government when none was intended, resulting in religious adherents being prohibited from participating in public life.
Given the threat imposed to our liberty, our freedom, and our financial wellbeing by overregulation and unaccountable federal bureaucracies, the views that Gorsuch has expressed towards the administrative state are also needed on the Supreme Court. Last year in Gutierrez-Brizuela v. Lynch, he authored a concurring opinion in which he criticized the validity of the Supreme Court’s holding in Chevron v. NRDC.
That is exactly the kind of attitude against unrestrained judges who rewrite the law to suit their ideology that we need in a Supreme Court justice.
That decision established a rule giving broad deference to decisions made by federal bureaucrats, rather than judges, when it comes to interpreting ambiguous laws. According to Gorsuch, this rule allows “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”
Gorsuch summarily encapsulated the problems with the type of activist judges who think of themselves as super legislators in his speech at Case Western. As Gorsuch said, consider what happens when we allow a judge to act as a legislator:
Unconstrained by the bicameralism and presentment hurdles of Article I, the judge would need only his own vote, or those of just a few colleagues, to revise the law willy-nilly in accordance with his preferences and the task of legislating would become a relatively simply thing. Notice, too, how hard it would be to revise this so-easily-made judicial legislation to account for changes in the world or to fix mistakes. Unable to throw judges out of office in regular elections, you’d have to wait for them to die before you’d have any chance of change. And even then you’d find change difficult, for courts cannot so easily undo their errors given the weight they afford precedent. Notice finally how little voice the people would be left in a government where life-appointed judges are free to legislate alongside elected representatives. The very idea of self-government would seem to wither to the point of pointlessness.
That is exactly the kind of attitude against unrestrained judges who rewrite the law to suit their ideology that we need in a Supreme Court justice. Hopefully with the help of Justice Gorsuch, President Donald Trump and the new Congress will finally start to rein in the federal government and the administrative state and start to corral it back within the limits on its power that the Founders set out in the Constitution.