In spite of a scorched-earth campaign by Democrats on the Senate Judiciary Committee, Neil Gorsuch has been confirmed to fill the Supreme Court vacancy left by Justice Antonin Scalia’s untimely death last year.
Gorsuch’s nomination was one of the most significant actions of the Trump presidency so far, and his confirmation will now have profound implications for our nation over the next several decades.
Here are four reasons why American citizens—especially Evangelical conservatives—should consider Gorsuch’s confirmation a great victory and why he might be better even than Scalia, whose place on the bench he would take.
1. He as a proven record defending religious liberty.
The First Amendment to the U. S. Constitution declares, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This amendment is deeply significant because it declares that every citizen is free to hold his or her own convictions about ultimate reality, align his or her life with those convictions, and do so openly and without fear.
Justice Gorsuch has a proven track record defending religious liberty, stronger in fact than Scalia’s, as Nathan Diament noted recently. Two of the weightiest examples are Hobby Lobby (2013) and Little Sisters of the Poor (2015), cases heard by Judge Gorsuch and the 10th Circuit of Appeals. In both cases the defendants successfully invoked the Religious Freedom Restoration Act (1993) as reason to overturn the Obamacare contraceptive mandate, arguing that the mandate would force them to be complicit in actions that their faith prohibits.
2. He will interpret the law rather than arbitrate morality.
In a 2009 speech entitled, “Mullahs of the West: Judges as Moral Arbiters,” the late Justice Scalia lamented that many Americans have placed their faith in Supreme Court justices to give our nation moral guidance. Yet, the Constitution of the United States specifically guards against giving the justices such mullah-like power; it gives the “We the People” the right to decide questions of moral profundity.
Sadly, certain federal judges have taken this right away from us by embracing a “living document” view of the Constitution. This progressive view contends that judges have the right to reinterpret the Constitution in light of “the times.” It’s overall effect is that a SCOTUS majority can remove things from the Constitution that they do not like and insert things they do. The “living document” view enabled the Roe v. Wade (1973) and Obergefell v. Hodges (2015) decisions.
We are not saying that the Constitution might never need to be revised or updated again in light of “the times.” Instead, we are saying that our Founding Fathers made clear amendment to the Constitution must reflect the will of the people; an amendment requires an overwhelming Congressional majority and ratification by three-fourths of the state legislatures.
Justice Gorsuch—like Justice Scalia before him—rejects the “living document” view. He would refrain from the type of judicial activism that bypasses the will of the people.
3. He may be willing to reject unconstitutional precedents.
The most contentious debate, however, concerns the legal principle of stare decisis. A Latin phrase, stare decisis means that judges should respect legal precedents by letting them stand instead of overturning them. It is important to note, however, that stare decisis is not found in the Constitution or the Bill or Rights; it is not the law of the land, but a “rule of thumb.”
As Constitutional lawyer Robert McFarland points out, a number of Democratic congressmen have taken a sudden interest in this legal principle. But for what reason? There is no evidence that these Congressmen have an affection for the legal principle, in and of itself.
They wouldn’t want to let Plessy v. Ferguson (which established segregation) stand, would they? Of course not. Were they concerned about it during Obergefell v. Hodges? No, not a peep. Yet, suddenly they are interested because a strict adherence to stare decisis might safeguard certain of the left’s favorite decisions, even if those decisions were unconstitutional or poorly reasoned.
Justice Gorsuch likely would not adhere strictly to stare decisis; there is reason to believe he would reject the precedent of previous SCOTUS decisions if and when he thinks the courts have gotten it wrong.
4. No Need for Mullahs on the Supreme Court
Americans—especially Evangelicals—stand to benefit from Judge Gorsuch’s confirmation. He will defend religious liberty. He will confine himself to interpreting the law rather than setting himself up as a moral arbiter. And he may be willing to overturn bad legal precedents in which former jurists set themselves up as moral arbiters.
In so doing, he will send a message to the political community that we have no need for mullahs at 1 First Street in Washington.
Bruce Ashford is the Provost and Dean of Faculty at Southeastern Baptist Theological Seminary, where he also serves as Professor of Theology and Culture. Follow him on Twitter @BruceAshford.