Donald Trump made it clear that he wanted to appoint a conservative to the Supreme Court, and in nominating Judge Neil Gorsuch he’ll get one. There are several different kinds of conservatives, mind you, and with Judge Gorsuch he’ll get the kind he wants.
Trump made it very clear that he wanted a conservative in the mold of Justices Antonin Scalia or Clarence Thomas, not Chief Justice John Roberts. What’s the difference, you ask? Roberts is the kind of conservative who adheres to precedents set by prior Supreme Courts. In other words, if the liberals on the Court have established a progressive precedent seemingly out of thin air, which conservatives hated, Roberts would be strongly inclined to follow it. In other words, Roberts isn’t a judicial activist.
There’s something to be said for the Roberts philosophy. Conservatives don’t have fond memories of the activist Earl Warren court, and for a long time railed against judicial activism. Congress and the president are supposed to make laws, not the judges, they said.
That’s an eminently conservative point of view, but it has this drawback. When the other side is full of judicial activists, the Roberts approach turns Supreme Court jurisprudence into a one-way ratchet in which bad ideas are given the cover of law and can never be rolled back.
That thought gave rise to a set of conservative judicial activists who took the American Constitution as their touchstone of judicial interpretation. Justices like Antonin Scalia were more than willing to roll back liberal precedents for which they could find no basis in the Constitution, and since they looked back to the original Constitution, as amended, they were called “Originalists.” Tuesday night Judge Gorsuch called the Constitution “the greatest charter of liberty the world has ever known,” and he’s an Originalist.
With Judge Gorsuch, Trump will get the replacement for Scalia that he wanted. Judges must do more than merely consider the Constitution, Gorsuch has written. “They take an oath to uphold it. So any theory of judging (in this country at least) must be measured against that foundational duty. Yet it seems to me those who would have judges behave like legislators, imposing their moral convictions and utility calculi on others, face an uphill battle when it comes to reconciling their judicial philosophy with our founding document.” That was from an essay in the Case Western Law Review, which Gorsuch wrote to acknowledge his great debt to Justice Scalia.
Religious conservatives, and conservatives generally, were cheered by Judge Gorsuch’s opinion in the Hobby Lobby case, which held that a company owned by a sincerely religious family was not required to provide insurance for abortifacients such as morning-after pills. On appeal, the Supreme Court agreed with Judge Gorsuch that the test whether a law impermissibly interferes with the free exercise of religion is a question for the believer and not for the government. It wasn’t for the U.S. government to tell people what their beliefs entailed, in a matter of life and death.
Judge Gorsuch has an exemplary legal background. He studied at Harvard Law School and Oxford University, and clerked for Justice Anthony Kennedy. His “The Future of Assisted Suicide and Euthanasia,” was published by Princeton University Press, and cast doubt on assisted suicide laws.
Interestingly, his mother was driven from office as head of the EPA after a squabble with liberal regulators and a Democratic Congress. Perhaps her experience helped inform Judge Gorsuch’s reservations about the administrative state.
Under the Supreme Court’s Chevron decision, courts should defer to executive agency interpretations of certain statutes unless they are deemed unreasonable. That’s not how Judge Gorsuch sees it. Chevron has allowed “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.”
With Gorsuch on the Supreme Court, a bloated administrative state will come under closer scrutiny.
F.H. Buckley teaches at Scalia Law School at George Mason University in Virginia. His book “The Republic of Virtue: How We Tried to Ban Corruption, Failed, and What We Can Do About It” will be published in December by Encounter Press.