Posted on 04/10/2020 10:54:44 AM PDT by Kaslin
Editor's Note: This piece was co-authored by David Feder.
Today is the three-year anniversary of Justice Gorsuch’s swearing-in as an Associate Justice of the Supreme Court of the United States. Although still early, Justice Gorsuch has already proven to be a grand slam for anyone who cares about interpreting the Constitution as written; for anyone who cares about the differences between judges and legislators; and for anyone who cares about protecting individual liberty.
As a judge on the Tenth Circuit Court of Appeals in Denver, Justice Gorsuch was widely recognized as a leading proponent of the judicial philosophy known as “originalism.” That term is simply a fancy label for a straightforward concept: judges should adhere to what’s in the Constitution and not what isn’t. An originalist understands that the people themselves decided what rights should be removed from the democratic process when they adopted the Constitution; it is not for a handful of unelected judges to change that bargain. As then-Judge Gorsuch eloquently put it: the Constitution “isn’t some inkblot on which litigants may project their hopes and dreams,” but rather “a carefully drafted text judges are charged with applying according to its original public meaning.”
After his elevation, the Justice has remained true to that philosophy. Time and again when confronting a constitutional question he has refused to make it up or rule based on his personal policy preferences. Instead, he’s rolled up his sleeves and done the hard work of parsing the litany of sources that bear on the Constitution’s original meaning. As former law clerks, we can attest that he leaves no stone unturned in his search for the original understanding. It is not always glamorous or easy but the Justice does it cheerfully all the same. He does the hard work in every case, even if some might not think the case terribly important. Indeed, a review of his record will reveal that he has practiced originalism across the board, whether analyzing the Contracts Clause (Sveen v. Melin), the Double Jeopardy Clause (Gamble v. United States), the Fourth Amendment (Carpenter v. United States), or some other provision still.
This faithful adherence to originalism means that Justice Gorsuch has become one of the Supreme Court’s fiercest defenders of individual liberty. That is no accident, of course. To the Justice, originalism is all about “ensuring that the liberties the people enjoyed at the founding remain no less secure today.” Consider Sessions v. Dimaya, for example. There, Justice Gorsuch determined that the Due Process Clause, as originally understood, meant that people must have fair notice of the law’s demands before the government can deprive them of their life, liberty, or property. Accordingly, he rejected the government’s attempt to deport a lawful permanent resident under a “law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it.”
Or take Kisor v. Wilkie. There, the Department of Veterans’ Affairs—an executive agency—asked the judiciary to defer to its reading of its own regulation, with the result of denying certain disability benefits to an injured Marine. Justice Gorsuch penned a powerful opinion explaining that judicial deference to an agency’s legal interpretation was inconsistent with the original understanding of the Constitution. After scrutinizing the historical sources, he concluded that the Constitution guarantees the people an independent judge who will decide legal questions impartially and without deference to political actors like agencies. The founders knew, he explained, that allowing political actors to bend the meaning of laws risked exposing unpopular groups to disfavored treatment even when they had complied with the law as written on the books.
I feel good about Gorsuch. Kavanaugh worries me.
Roberts worries me more.
Kavanaugh is better than Kennedy, and given how he barely got confirmed, was probably the most conservative justice we could have gotten through that Senate.
The most important decision of this term will be DACA, and it is one we’re going to win. It’ll help make immigration a front and center issue for the election, and that’s good for Trump and the GOP.
Roberts worries me greatly. He acts compromised.
Roberts is at best a left of center swing vote. The Obongo care vote was an unforgivable sell out followed up by smacking down AZ for enforcing Federal law to protect their own borders. Gorsuch replaced Scalia, one of the finest conservative minds we will ever know. Gorsuch has been pretty good be he is no Scalia.
I worry even more because i am not sure he is compromised but a willing tool.
bump
I just hope he isnt drifting left like many have done before him.....Roberts for example.
I suspect that Roberts knows right from left and right from wrong.
I also worry that he worries more about WaPo headlines and editorials than he does about this fine Country.
There is always hope that he develops courage and conviction (and thus, redemption.)
Gorsuch is a gun owner and user.
The recent 8-1 decision in Kansas v. Glover really surprised me. Only Sotomayor dissented.
https://www.kansas.com/news/local/crime/article241848156.html#adnrb=900000
So far I have no complaints about Kavanaugh. He is clearly better than Kennedy was.
If we want real progress, Trump needs to be able to replace a couple of the Gang of Four.
There was a website listed here during the Kavanaugh confirmation debacle that tracked the decisions of the justices from one court term to the next and ranked the justices by political/judicial leanings. By the time Scalia died he was no longer the most conservative among them. Thomas was #1, followed by Alito at #2. Scalia was a distant third, and he was only marginally better than Roberts. I found that interesting, for sure.
If you look through every USSC decision you might be surprised to see how many 8-1 and 9-0 cases there are. We just never hear about them because they aren’t landmark cases on major controversial issues.
That is interesting. As I recall he struck up a close friendship with RBG in his final years. Has there ever been a lefty who shifted? It always goes the other way for some reason.
His ruling on Obamacare was simple inexplicable. He made up law out of thin air and interpretations that defied legal logic. A tax is a tax until that was inconvenient for Roberts desire to pass Obamacare. His past history as a Federal Judge was consistently original interpretation of the Constitution.
I think you are correct that he is compromised.
Agree. Roberts is on a leash.
I assumed that at least RPG would also dissent in this case.
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