by Daryl Dominic Tan
Yesterday I woke up to the wonderful news that President Trump nominated Judge Neil Gorsuch to the late great Justice Antonin Scalia’s former & now vacant seat on the Supreme Court of the United States. This is an immensely well-thought pick that should satisfy conservatives of most, if not all, stripes. The question is whether this move by Trump to nominate Gorsuch should also allay the fears and concerns of libertarians and/or liberty-loving individuals in modern day America.
The Democrats led by Chuck Schumer have already made clear their intention to block Gorsuch’s appointment. However, this may end up being a fruitless attempt for the Democrats for a slew of reasons. Firstly, Obama’s Acting Solicitor General has come out in favour of Gorsuch. This may have the effect of swaying some Democrats to vote for his confirmation. In fact, some Democratic Senators have already voiced their support for Gorsuch. Secondly, it is likely that Trump will have the honour of choosing a second Justice within his presidential term as 2 Justices on the Supreme Court are currently in their 80s, and one in his late 70s, and the Democrats may want to save their strength for an all-out war come the next nomination. Thirdly, in 2013, Harry Reid, the previous Democratic leader of the Senate, employed something known as the “nuclear option” in which a Confirmation needed only a simple majority of 51 votes rather than the usual 60 to be able to pass. The Democrats seem to have shot themselves in the foot for employing such a short-sighted device that the Republicans are now threatening to utilise as well.
It is therefore likely that Neil Gorsuch will be appointed the next Supreme Court Justice. However, there are many concerns regarding Gorsuch. Not much is known about him apart from the fact that he harbours relatively similar views as the late great Justice Scalia. Here in this post, I will reveal some facts about Gorsuch and whether his nomination and (hopefully) eventual appointment would be a triumph for liberty or otherwise.
GORSUCH’S JUDICIAL PHILOSOPHY IN A NUTSHELL
Neil Gorsuch’s judicial philosophy can be summed up in two remarks he made recently:
(1) "A judge who likes every outcome he reaches is likely a bad judge," (Gorsuch repeated in essence this famous Justice Scalia quote at his appointment ceremony)
(2) “Judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views.”
The first remark underscores Gorsuch's fidelity to the Constitution and to the laws of the land, just like Justice Scalia.
The second quote expands on the first. By traditional tools, Gorsuch is referring to Originalism and Textualism – the same judicial methods of interpretation that Scalia invoked as judge. Textualism essentially means that Judges, in interpreting the law, should be governed by the text of the law or statute, and not whether the outcome is desirable or not. Originalism, which is a sub-species of textualism, means that "when you consult the text - you give it the meaning it had when it was adopted, and not a later modern meaning." as per Scalia's own words.
These traditional tools of interpretation help to provide a bulwark against the authoritarian tendencies of the administrative state, for they render the executive branch of the State incapable of legally wrangling the meanings of statutes to fit and suit their needs when political expediency calls for it. This provides certainty and clarity in the law – both essential components of the Rule of Law doctrine which is the idea that the people are governed by laws, not by men.
By virtue of Gorsuch’s judicial philosophy, the United States of America can expect to follow a rigid (and rigid is not always a bad thing) and stricter reading of the Constitution – the document that exists to protect the rights of all American individuals in the face of Majoritarian policies enabled by the democratic political process. This is a huge win for the cause of liberty, and libertarians should be happy about this.
Liberals, on the other hand, aren’t too jubilant about this. Notable Liberal justices on the Supreme Court such as Stephen Breyer and Ruth Bader Ginsburg believe strongly in the concept of a “living document”. They believe that the Constitution of the United States is one such “living document” - a document that is supposed to change and evolve with time and that it must be interpreted in light of modern day culture and context. The problem with this doctrine is that if the Constitution can be so loosely interpreted, judges essentially become part of the legislature as well. A loose interpretation of constitutional provisions and statutes would allow the law to run amok, and would create uncertainty and confusion with regards to how the law should be meted out. This is antithetical to the rule of law doctrine that the people should be governed by laws.
This is not to say the Constitution is entirely static. The Founders of the United States of America provided for an Amendment process (2/3 majority of both houses of Congress must vote on a Constitutional Amendment) for they understood that as time goes by, societal norms and the prevailing morality of the people evolve. This is true and nobody is denying this. The Constitution has been amended 27 times in history as a result of this. This was done the proper way, not through supplanting the role of the legislature. If the Founders provided for an Amendment process, the Constitution – by logic – cannot be seen to be a Living Document. Do not like certain provisions of the Constitution? Amend it legally. Gorsuch understands this well enough.
ON ADMINISTRATIVE/EXECUTIVE OVERREACH
One of Gorsuch’s more famous cases is Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. The seminal aspect of this case was the introduction of a legal doctrine known as the Chevron deference. This doctrine essentially provides that when the judiciary comes across a statute or law that is “ambiguous” with regards to meaning, it is appropriate for the judiciary to defer to the executive branch of the State or the agency responsible for enforcing the particular statute in question. Justice John Paul Stevens in his majority opinion wrote that “Federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do […] While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices."
Gorsuch finds the existence of this doctrine abhorrent - and rightfully so. The majority opinion in this case essentially allows the Executive branch of the State to assume the role of the Judiciary - a blatant violation of the Separation of Powers doctrine intended to prevent abuse of power within the State. Gorsuch referred to this doctrine as a “striking abdication of judicial responsibility”. From this alone, one can tell that Gorsuch takes very seriously the checks & balances mechanism provided for in the Separation of Powers doctrine and that it is fundamentally necessary for the Courts to rein in Executive power when the situation calls for it.
Another case in which Gorsuch sharply criticized Executive overreach is Caring Hearts v. Burwell
Here, Gorsuch wrote:
"“This case has taken us to a strange world where the government itself—the very ‘expert’ agency responsible for promulgating the ‘law’ no less—seems unable to keep pace with its own frenetic lawmaking, [...] A world Madison worried about long ago, a world in which the laws are ‘so voluminous they cannot be read’ and constitutional norms of due process, fair notice, and even the separation of powers seem very much at stake.”
And on the issue of Delegated Legislation (where laws are made by an executive authority under powers delegated from by an enactment of primary legislation), he wrote:
“[A]ll this delegated legislative activity by the executive branch raises interesting questions about the separation of powers ... [including] troubling questions about due process and fair notice—questions like whether and how people can be fairly expected to keep pace with and conform their conduct to all this churning and changing ‘law.’”
Everyone knows that governments tend to become increasingly authoritarian as time goes by, especially if their power is left unchecked, and the time-honoured maxim of Lord Acton rings true - “Power tends to corrupt, and absolute power corrupts absolutely.” It is comforting to know that Gorsuch remembers this maxim when deciding on cases.
ON LAW ENFORCEMENT OVERREACH
Libertarians are distrustful of ALL forms of authority – especially the kind of authority delegated to law enforcement officials. As such, they should take comfort in knowing that Gorsuch isn't too big a fan of law enforcement officials overstepping their legal boundaries.
Two cases reflect this.
The first of which is the case of United States V Carloss.
Here’s an excerpt from Reason.com:
“… in his 2016 dissent in United States v. Carloss, Gorsuch strongly objected to the majority's view that police officers had the "implied consent" to enter private property for a warrantless "knock and talk" on a homeowner's front porch even though the homeowner had placed multiple "No Trespassing" signs around the property and even on the front door. Under the government's flawed theory of the Fourth Amendment, Gorsuch complained, "a homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn't enough to revoke the state's right to enter." As Gorsuch dryly observed, "this line of reasoning seems to me difficult to reconcile with the Constitution of the founders' design."”
This highlights the obvious fact that Gorsuch is a stalwart defender of the right to privacy enshrined in the Fourth Amendment - another piece of great news for the liberty-loving individuals.
The next instance of Gorsuch’s displeasure with law enforcement officials abusing their power is reflected in his dissenting opinion in a rather unique case - A.M. v. Holmes.
In this case, a 13-year old student was admonished by his teacher for disrupting his gym class with his incessant burping. However, he did not stop, and the teacher in charge called the Police to assist. The Police arrested the boy and sent him to juvenile detention. The issue here was whether there was a need to call in law enforcement officials, and whether law enforcement officials in this particular case had overstepped their authority. The majority held that they did not.
However, Gorsuch’s dissent speaks otherwise. He writes:
“If a seventh grader starts trading fake burps for laughs in gym class, what's a teacher to do? Order extra laps? Detention? A trip to the principal's office? Maybe. But then again, maybe that's too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal's office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that's so. Respectfully, I remain unpersuaded.”
Need I say more? This is what America has regressed into - a place where 13 year old children are taken away by the strong arm of law enforcement officials for burping, and Gorsuch is clearly not one to stand for it.
ON RELIGIOUS FREEDOM
Gorsuch is known in conservative circles to be fanatical in his defence of religious freedom enshrined in the First Amendment. However, Gorsuch has been accused by Liberals of favouring only Christianity and showing bias.
This is demonstrably untrue as can be attested to in the majority opinion he wrote in Andrew Yellowbear Jr v The State of Wyoming. Here, Andrew Yellowbear Jr, a Native American, was denied access to a place of prayer for his Native American religious tradition.
Gorsuch wrote:
“Andrew Yellowbear will probably spend the rest of his life in prison. Time he must serve for murdering his daughter,[…] With that much lying behind and still before him, Mr. Yellowbear has found sustenance in his faith.”
Gorsuch then ruled that there was “insufficient justification” to deny access to Andrew Yellowbear on the grounds that his First Amendment rights which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” had been violated.
ON NATURAL LAW THEORY
I came across an article which mentioned that Gorsuch studied under reputable legal philosopher and Natural Law theorist - John Finnis during his time at Oxford. What are the implications of this?
I’m not going into a whole treatise on Natural Law here, but the undisputed maxim of Natural Law theory is provided by St. Augustine of Hippo who once wrote: “Lex Injusta Non Est Lex” which is Latin for “An unjust law is no law at all.”, with St. Thomas Aquinas quoting St. Augustine a number of times and expanding on what this maxim means. In a nutshell, Natural Law's origins lie in the idea that “there is a rational order which exists in nature and which is discoverable by human reason” as per Denise Meyerson's 'Understanding Jurisprudence'. In this rational order, natural lawyers subscribe to the theory that one is able to derive from it an objective or absolute standard of morality, and through this - one is able to discern that there are certain inalienable rights (Natural Rights) that are inherent in us, and which are prior to legal rights. John Finnis who refers to himself as a Neo-Thomist has helped to develop Natural Law theory tremendously through his Magnum Opus 'Natural Law & Natural Rights', and he is definitely bound to have a huge influence on how the Nominee thinks.
The only other Supreme Court justice who subscribes to Natural Law theory and invokes it when making decisions is Justice Clarence Thomas, yet another originalist thinker I hold in high regard. This could also be one of the main points that slightly sets Gorsuch apart from Scalia, albeit in a good way. Whilst Natural Law has been argued by many to be an abstract theory that has no place in courtrooms, Professor Randy Barnett has argued to the contrary and does so convincingly in his seminal book ‘Restoring the Lost Constitution’ that Natural Law is not merely an abstraction but exists tangibly in the United States Constitution in the form of the Ninth Amendment.
The Ninth Amendment of the Bill of Rights addresses “legal rights inferred from other legal rights that are officiated in a retrievable form codified by law institutions, such as in written constitutions, but are not themselves expressly coded or "enumerated" among the explicit writ of the law.” as per Wikipedia.
The Ninth Amendment provides:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
This clause therefore covers rights (inalienable and inherent rights also known as natural rights as already mentioned above that are universal & common to mankind) not enshrined within the Constitution explicitly. These rights are as Barnett puts it: "the unenumerated rights that people possessed prior to the formation of government" and that these rights "should be accorded the same protection as those natural rights that ended up being included in the enumeration." It is a well-known fact that Natural Law has, time and time again, been invoked to protect the rights & liberties of individuals and used as a brake against the State's powers, and such an idea should be thus welcomed in libertarian circles from an American Constitutionalist perspective.
I found some quotes on how Gorsuch views Natural Law which underpins the Declaration of Independence - essentially the birth certificate of the United States of America. His quotes indicate a favourable approach to Natural Law philosophy.]
Neil Gorsuch has written:
"Don’t we sometimes respect persons and things because of what they are, not because of what they can do for us? Indeed, our entire political system is premised on the notion and acceptance of such basic, fundamental rights (and wrongs), as reasoned from human experience. Our Declaration of Independence begins the substance of its work with the bold assertion that certain "truths" about human nature are indeed "self-evident," that these self-evident truths include the impulse for life and the value of liberty, and all that follows in the Declaration, the whole purpose pose and ideal of government as envisioned by the founding document of our country, is to establish a government that is aimed at securing and protecting what our founders considered to be self-evident human rights and truths." ...
He goes on further to say [with regards to Natural Law]
"Perhaps the most profound indicium of the innate value of human life, however, lies in our respect for the idea of human equality. The Fourteenth Amendment to the U.S. Constitution guarantees equal protection of the laws to all persons. ... This profound social and political commitment to human equality is grounded on, and an expression of, the belief that all persons innately have dignity and are worthy of respect without regard to their perceived value based on some instrumental scale of usefulness or merit. We treat people as worthy of equal respect because of their status as human beings and without regard to their looks, gender, race, creed, or any other incidental trait—because, in the words of the Declaration of Independence, we hold it as "self-evident" that "all men (and women) are created equal" and enjoy "certain unalienable Rights." ..."
I have deliberately emboldened "self-evident" because Natural Law theory is essentially about the "discovery of self-evident truths". These statements by Judge Gorsuch illustrates a well-versed understanding of Natural law theory, and is wonderful for liberty lovers to take into consideration in their assessment of Gorsuch's appointment.
FINAL THOUGHTS
Only time can tell what kind of Supreme Court Justice Neil Gorsuch will be, but based on his previous judgments, opinions (dissenting or otherwise), general outlook on the Constitution and views on how the law should be applied - I am certainly optimistic and hopeful for the cause of liberty in America.
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