Today’s Supreme Court isn’t exactly a Trumper court — he appointed only 3 of the current justices — but it’s a more radical court, and increasingly out of step with a majority of the American people. One of those leading the rightward charge is Neil Gorsuch.
Gorsuch (bio here) was appointed by Trump to replace Antonin Scalia, himself a controversial rightwinger. He’s the son of Ann Gorsuch (bio here), Reagan’s controversial EPA director. While that by itself doesn’t necessarily make him suspect, this is truly a case of like mother, like son, at least in the sense that he’s as reactionary as she was.
That would be okay, if that’s all he was. Skewing the court ideologically is a prerogative of presidents when they appoint justices, subject to Senate concurrence. But it’s worse. He’s a rigid idealogue willing to cause massive disruption in order to impose his views on society.
In an article here, Vox describes Gorsuch as a “nihilist” who, in a pair of 2021 cases, voted to blow up the housing market all over again, and kick 31 million Americans off their health coverage.
His broader agenda, Vox says, is “anti-government, skeptical of democracy …, and eager to centralize power [in] the judiciary.” And he’s willing “to impose draconian consequences on the nation” to achieve his goals.
As Vox observes, “That’s a troubling combination in anyone, but it’s a potentially dangerous one in a judge.”
That’s not a reason to remove him from the court. Rather, it’s why the nation’s highest court, where appeals stop, consists of 9 judges, not 3, or 1. In a court from which there’s no further appeal you need to allow for some judges being wrong, extreme, even dangerous. You do that by diluting each judge’s power, in order to lessen their ability to do harm.
The foundation of Gorsuch’s ideological rigidity is “textualism,” closely related to “originalism,” a pair of ideas that the law is whatever its language meant when it was enacted. This is one of those things that looks better on paper than it works in real life (see photo at left).
The basic problem is that because laws are collectively drafted, there usually is no single definitive intent, and more often than not they’re ambiguous (not infrequently, intentionally so).
Another problem is that if a law is misinterpreted, and the misinterpretation passes into common usage that prevails for a long time, then reinterpreting the law instead of going with the longstanding usage can be very disruptive, and especially so if the reinterpretation is applied retroactively. But an even bigger problem is, what if the “misinterpretation” was the right one, and the reinterpretation is nothing more than a new judge substituting his reading for the prior one?
These are what Vox calls “textualism’s flaws.” But their article goes further, and accuses Gorsuch of inconsistency. His “record on the Supreme Court,” it says, “exposes just how spotty his application of the methodology is.” Vox accuses him of showing “no compunction” about “treat[ing] the text of a statute as merely optional,” when it suits his purposes to do so, citing specific decisions demonstrating his “commitment to textualism [is] little more than hot air.” In other words, in his hands, textualism isn’t even a judicial philosophy, but only a tool of convenience.
But if Gorsuch isn’t a rigid ideologue, then what is he?
Anti-democracy, Vox says. Shocked? You shouldn’t be. He’s a Republican, and no contemporary Republican likes majority rule, not least because the GOP is an unpopular minority party and would never get to make public policy decisions in a strictly majority-rule system. But nobody is pushing for such a system; for 240 years, generations of Americans have accepted living under a system based on majoritarian principles with built-in protections for minority factions and interests. This is seen, for example, in the First Amendment’s protection of unpopular speech (such as flag-burning).
But you expect the court the Founding Fathers created as an integral part of that system to uphold its basic structures and principles. (To be fair, it wasn’t the Framers, but rather the first Chief Justice, who established the court’s power to overrule the other two government branches; details here.) And that’s where Vox finds Gorsuch’s pronouncements from the Supreme Soapbox most troubling, to wit: “Few justices … have shown more hostility toward the right to vote and toward democracy … than Neil Gorsuch.”
That’s a pretty serious accusation, so what’s their evidence? Vox cites specific cases, including one from South Carolina in which Gorsuch wanted to throw out 20,000 legitimate votes cast by people who followed the rules in place, simply because he didn’t like the rules; and a series of cases in which Gorsuch voted to give partisan legislatures unbridled power to rewrite election rules in ways that violated voters’ rights, going so far as to argue that governors couldn’t veto such legislation. (This seems to evince a belief that ultimate power resides in legislators, not the people, and in practice would make those bodies self-selecting and take the power of electing them away from the people.)
Gorsuch also has attacked press freedom, Vox says, citing opinions indicating he would strip away the news media’s First Amendment protections against harassing defamation lawsuits and empower hostile state legislatures to write laws that would heavily penalize news organizations for trivial reporting errors. (For example, Alabama courts awarded a state official a $500,000 verdict against the New York Times for running an ad purchased by civil rights activists that claimed Martin Luther King Jr. was arrested seven times, when in fact he’d been arrested four times. In 1964, the Supreme Court threw out that verdict in New York Times v. Sullivan, details here.)
It seems if Gorsuch got his way, he could personally sue this blog for any tiny error in Vox‘s story about him, even if the error was made by Vox and not this blog, and the error was trivial and of no consequence to his reputation or judicial career. Needless to say, neither Vox nor this blog could exist under such a legal regime, nor could anyone say anything on the internet, or even in private conversation between two individuals, without running the risk of a devastating lawsuit by some offended party (and some people offend very easily).
Gorsuch is also on a crusade to destroy the power of federal regulators. This would immensely shrink the reach and effectiveness of government; which, of course, is a major goal of rightwing neo-anarchists like Grover Norquist (read more about him here) who want to “drown it in the bathtub.” Congress enacts policy and delegates many of the details to federal agencies with subject-matter expertise. That’s a practical necessity in a complex, technology-based society like ours. But the ideologue, Gorsuch, doesn’t care whether things work; he wants “to give the judiciary a veto power over any agency regulation that its members do not like.”
That’s bad enough, but nowhere is Gorsuch’s approach to the law more grotesque than in his death penalty opinions. There, he has brazenly swept aside the Eighth Amendment’s protection against “cruel and unusual punishment” and argued that states can torture condemned prisoners to death.
If Gorsuch doesn’t like the America we have now, and it sure looks like he doesn’t, then you have to ask what kind of America he wants. Judging from his opinions, that appears to be an America with truncated free speech and voting rights, where reactionary legislatures and judges pretty much run everything. It’s not clear where that stops, or whether it does.
True, Gorsuch is only one justice, and a single rogue justice isn’t especially threatening if the others outvote him. But when the court begins to fill up with appointees like Gorsuch, and that margin of safety begins to look a little thin, then a Democratic Congress may have to take a hard look at whether nine justices is enough to protect the country from judicial extremism.