Gorsuch on the Court: the Fight, the Future

Isaac Lunt, Johns Hopkins University:

It all started on February 13, 2016. I was walking around the Baltimore Museum of Art when my phone buzzed. It was a News Alert. “Holy shit,” I said to my friend, “Antonin Scalia just died.”

This was at the start of the final year of the Obama administration, back when a Donald Trump presidency was only seemed realistic on The Simpsons. It was a shock. Scalia, 79, was a fixture on the bench, one of the longest-serving members of the court, a bombastic staple of conservative principals. His death was unexpected, and his vacancy left a vacuum.

In a display of partisan obstruction and knowing disregard for constitutional responsibility, that very day, Senate Majority Leader Mitch McConnell issued a statement that the Senate would not consider any nominee put forward by President Obama. Obama went on to nominate Merrick Garland of the D.C. Circuit Court of Appeals, a jurist respected across the aisle. But Senate Republicans did not budge in the face of compromise. They never even gave Justice Garland a hearing. Scalia’s seat remained empty for over a year.

Fast forward.

In January of 2017, President Trump announced his nomination to the court of Justice Neil Gorsuch of the 10th Circuit Court of Appeals. The Right rejoiced. McConnell’s play had paid off, and conservatives were being rewarded for his obstinacy with a carbon-copy of Scalia (albeit in the silver-fox, politely intellectual mold). Now all they had to do was get him on the bench.

But Democrats were not going to let Republicans fill that seat—a seat that they viewed, legitimately, as being stolen—without a fight. Talks of filibuster emerged. The Republicans threatened to deploy the “nuclear option” if necessary.

The Senate is currently divided 52 Republicans, 46 Democrats, and two Independents (who almost always vote with the Democratic party). This is how it worked until the events of April 6: senators debate the nominee; the debate is ended; if even one senator wishes to continue debating, a filibuster is invoked, meaning the debate will continue; at least sixty senators must vote to end the filibuster. Basically, if any one party can round up at least 41 votes, a filibuster may be invoked indefinitely.

On April 6, 2017, the partisan blowup formerly known as “the Supreme Court confirmation process” came to a head on the floor of the Senate. The Democrats had the votes. And they filibustered. So the Senate Republicans voted to change the rules of cloture, mandating that only a simple majority (51 votes) be required to end a filibuster. This rules change passed with 52 votes, the filibuster was ended with a simple majority, and Neil Gorsuch was confirmed on April 7. He was sworn in on April 10.

Like it or not, Neil Gorsuch is our newest Supreme Court Justice. And as interesting as the ugly political battle that got him there is, it is also important that we examine who he is and what he will mean for the future of the Court.

Neil Gorsuch was appointed to the 10th Circuit Court of Appeals (which covers Vermont, Wyoming, Colorado, New Mexico, Kansas, and Oklahoma) in 2006 by President George W. Bush. He had previously been a student at Harvard Law School (ironically, a classmate of Barack Obama’s). But most importantly, he is a member of the Federalist Society, the highly conservative school of legal thought founded in the 1980s.

The Federalist Society is one of the most important conservative institutions in the United States. Created by conservatives who believed liberal ideology was infecting the teaching of law, since its inception, the Federalist Society has seen five of its members go to the bench under Republican Presidents: Antonin Scalia, Clarence Thomas, John Roberts, Samuel Alito, and now Neil Gorsuch.

The members of the Federalist Society believe in the principle of Constitutional Originalism, or the belief that the law should be interpreted based strictly on the intentions of the Founding Fathers. This is in opposition to the legal attitudes of more liberal justices (for example, Ruth Bader Ginsberg), who understand the Constitution as a living document that must be updated and modernized with the times.

It is important to understand that, in an ideal world, the Court would be a non-partisan, apolitical body. In theory, the Court is simply a collage of the most brilliant legal scholars in the country debating over the specifics of a case. But over the last thirty years, that has changed. It has come to the point where ideology consistently determines where the justices vote. Take, for example, these five landmark cases from the last five years when Scalia was on the bench and the ideological makeup of the court mirrored what it is now, Obergfell v. Hodges, US v. Windsor, Citizens United v. FEC, Shelby County v. Holder, and National Federation of Independent Business v. Sebelius. These cases cover a wide range of national issues: gay marriage, campaign finance reform, civil rights, and healthcare, but in each case, the justices were divided right along party lines, with conservative members voting against the expansion of rights for homosexuals, for the limiting of the Voting Rights Act, for the expansion of Corporations Rights of “free speech,” and against Obamacare. Consistently, Justice Anthony Kennedy’s vote has decided these important cases, and while he sits firmly in the center of the ideological spectrum, it is possible that Gorsuch, who once clerked for him, will be able to sway him to the right on certain issues.

Frankly, Gorsuch’s appointment to the Bench should strike deep fear into the hearts of anybody who, like me, believes in the slow, generational pace of progress. Under the doctrine of originalism, The Federalist Society’s members consistently oppose the expansion of rights for society’s most marginalized, support religious freedom to the point that it threatens the separation of church and state, and believe in the individual rights of big corporations. Now, as Gorsuch stated in his 2005 op-ed, the justification for these viewpoints stems from a desire for an apolitical court. Jurists such as Gorsuch believe that the only way to keep the court out of partisan politics is to limit its scope to what is directly written. And while that may sound like a legitimate argument, it is important to realize that the principles to which the Federalist Society adheres are themselves antiquated and absurd. The members of this society spend lifetimes defending a document that was written over two centuries ago by a bunch of landowning white men in a society where women and people of color were not considered human beings. The very notion of “originalism” is problematic. The fact of the matter is that a growing number of our most important social issues (LGBTQ+ rights, civil rights, campaign finance, immigration, legalization of marijuana, etc.) revolve around guaranteeing rights to those who the Constitution initially ignored.

If you’re anything like me, then your political consciousness is relatively young. This is probably the first administration you have followed closely since inauguration. Because of that the events of the past few months have started to characterize your perception of “normal,” even if simply because you’ve never experienced anything else. This is not normal. Never, in the history of the United States of America, has the Senate refused to give a hearing to a nominated Justice. And never has the Senate taken an action to so drastically alter the rules regarding Supreme Court confirmations. Pundits and conservatives can talk about Harry Reid in 2013 all they want—it is not the same thing.

For some, it may be disillusioning to see that our institutions have such shaky foundations. I see it as deeply ironic. I wonder, in light of his unprecedented appointment, how Neil Gorsuch, originalist darling, feels about Article II?


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