A constitution that puts judge-made law first will be an increasingly unoriginalist constitution as precedent is piled on precedent.
Judge Neil Gorsuch of the Tenth Circuit Court of Appeals is by virtually every account a stellar jurist. His writings are now being mined, by supporters and opponents alike, for evidence of his commitment to judicial restraint and the separation of powers.
That evidence is not hard to find. In an address delivered on April 27, 2016, Gorsuch spoke of “the great project of Justice Scalia’s career,” namely to expound “the differences between judges and legislators.” It was ever Scalia’s intention to remind us, said Gorsuch, that
legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That 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.
Saner words were never spoken. We should take heart in the man and thinker that Gorsuch is. His pedigree is impeccable; it is that of an elite, and yet he has taken a path that is strikingly different from that of his similarly pedigreed contemporaries.
Few have noted that he is a student of John Finnis of Oxford, where he took a doctorate in philosophy. Gorsuch’s book, The Future of Euthanasia and Assisted Suicide, published by Princeton University Press in 2006, provides ample evidence that Finnis’ new natural law school of thought took root. The book is premised on the immutable dignity of human life and delves into the private, lethal acts that constitute euthanasia—acts that are in no way reconcilable with a constitutional government whose mandate is protecting its citizens from violence. He shows how the licensing of private killing slowly undermines the very social contract on which constitutional authority rests. All lives matter—and for saying so, at erudite length, the Rocky Mountain jurist will no doubt face an opposition that is all the more vehement.
Another lightning rod will be his principled opposition to the administrative state doctrine known as Chevron deference. Gorsuch has stated clearly that the problem with the Chevron doctrine—under which courts must defer to interpretations of statutes from the very agencies that enforce those statutes, unless such interpretations are unreasonable—is that just about everything, in practice, is deemed reasonable.
Here’s Gorsuch on deference to agencies:
Executive bureaucracies . . 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.
Preach it, brother. What is encouraging is that he has recognized the essential problem with Chevron deference, which is not necessarily the substance of the regulations being judicially rubber-stamped but the problem of their authority. Critics of Gorsuch who characterize the maintenance of Chevron as an essential of judicial restraint misapprehend the purpose of restraint: not to curb courts, as if that were an end in itself, but to facilitate representative self-government. Chevron deference undermines the authority of statute as expressed by the people’s representatives in favor of the will of agencies, which are shielded from deliberative politics.
In the same opinion in Gutierrez-Brizuela v. Lynch (2016), in noting that there was “an elephant in the room” and that “maybe the time has come to face the behemoth,” Gorsuch underscored what many are thinking about the regulatory state, even those unwilling to eliminate the judicial doctrines and conventions that give license and latitude to its rule-mongering. Americans may never go full Philip Hamburger on the administrative state, but we can’t keep treating it as obsequiously as we do at present.
Against the excesses of President Obama, and what portend to be the same from President Trump, Gorsuch may count more than Justice Thomas on his side in seeking to undo these near-sacred administrative state doctrines. Gorsuch’s position on Chevron and his jurisprudence more broadly suggest a willingness, in the manner of Sir Edward Coke, to declare that the executive must be subject to the law. This in a political milieu that emphasizes action over deliberation and forward motion over balance, and in which constitutionalism is increasingly situational.
What will be no surprise to Gorsuch is the degree to which problems in our constitutionalism show up in the nominating process for the U.S. Supreme Court. His is likely to be an arduous ordeal. The smart money is on his confirmation, but we would be foolish to discount uncertainty in outcome given the battle lines as we knew them, and the additional need to factor in a Trump political team that may well lurch into action like some sort of hell-bent cavalry. So hang on for a rough ride.
This only highlights the truth that the Supreme Court should not function as a sitting constitutional convention, making every nomination into an event capable of reshaping our politics. As with presidential elections these days, the excessive power changing hands swells the stakes of each and every confirmation battle, inflating it to world-historical terms and making participants lose sight of the fact that there will be a next time (which fact used to at least somewhat temper their actions).
Independent branches of government, separated and set against one another on grounds of institutional pride and jealousy, is at the core of our constitutionalism. Politics is to be managed by representation, compromise, and the holding of certain interests in abeyance to achieve others more near at hand. One lives to fight another day, even when one’s party is in the minority. Every republic must have clashes to decide what defines it. The Supreme Court can provide no such space in which self government can occur. When acting as the arbiter of such conflicts, the Court becomes instrumentalized in the politics of friend versus enemy, to cite the concept of the infamous German legal theorist Carl Schmitt, who also served as a jurist in the Nazi government. Schmitt said that liberal parliamentary systems no longer worked in modern democratic societies because their demands overwhelmed the limited capacities of representative government. Only an executive-led government could direct such a complex and fast-moving political order.
But Schmitt’s call for executive-led government — because liberalism can’t contemplate the contents of politics, which he said is a divisive and war-like pursuit of zero-sum opposition — is also a fault of judicial led government and applies to those rushing to get before the Court and be blessed by five votes. Might we be forgiven after reading the Court’s Obergefell opinion for thinking that those in the majority understood this precisely?
Reclaiming republicanism is a tall order. Gorsuch is an impeccable nominee, but he can’t save us, not on his own. But maybe he has some insights for us. In 2005, our potential new member of the Court wrote the following:
American liberals have 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.
Might we follow his lead and reinvigorate representative government and not the courtroom?