The ideas of Justice Scalia remain at the center of constitutional discourse even after his death.
Judge Neil Gorsuch is worthy successor to Justice Antonin Scalia. He is an advocate of originalism who writes well enough to persuade the public and has the intellectual heft to engage the academy. But there is one way in which he differs sharply from Scalia. He is no fan of the Chevron doctrine, which directs judges to defer to agency interpretations of statutes so long as they are reasonable even if the interpretations are not the best. Given that much of modern law is administrative law and so much of our current democratic deficit is due to the administrative state, this is an important difference.
And it is a difference that reveals something about President Donald Trump, about the changing nature of modern legal conservativism, and about the internal tension of the Democratic opposition to Gorsuch.
A common criticism of President Trump is that he is an authoritarian executive. But he has chosen to nominate a judge who is on the record against giving deference to interpretation of statutes by heads of executive agencies. Gorsuch opposes an important doctrine that would protect the administration’s authority.There were many judges on his list of 21 potential nominees who were more favorable to Chevron and yet he passed them over. This choice is not the action of someone who wants to maximize his power at all costs. Perhaps some would say that Trump was just ignorant of these details. But surely his key agents, including Steven Bannon and Reince Priebus, recognized this salient feature of Gorsuch’s record and they recommended him nonetheless. Just as Trump’s nominations suggest he is better than his off-the-cuff statements, so his nomination of Gorsuch likely suggests that his administration’s considered views on federal power are better than his impulsive tweets.
Second, the difference between Scalia and Gorsuch on Chevron reflects the changing nature of legal conservatism. Back in 1984, when it was decided, Chevron was cheered by conservatives because their greatest fear at that time was of judicial overreaching. The Warren Court, and even more relevantly the District of Columbia Circuit Court of Appeals in the 1960s and 1970s, bent statutes beyond recognition to reach left-leaning results. But conservatives have made substantial progress against such judicial lawlessness in statutory interpretation. Now they have recognized both that Chevron is in some tension with the rule of law and that the greater problem today is the power of the overweening administrative state. Chevron magnifies that power.
Finally, Gorsuch’s opposition to Chevron splits the Democratic opposition to Gorsuch. Some elements within the Democratic coalition have already signaled that his position on Chevron is cause for rejecting his elevation to the High Court. On the other hand, Democrats say they want a jurist who will stand up to President Trump. Of course, discarding Chevron facilitates opposition to the President’s agenda. Democrats must decide which takes precedence, their opposition to Trump or their enthusiasm for administrative power.