This column by ACRU Policy Board member Hans von Spakovsky and Elizabeth Slattery was published January 31, 2017 by Fortune.
With the nomination of Neil Gorsuch to serve on the U.S. Supreme Court, President Donald Trump has kept a key campaign promise: to nominate a worthy successor to late Justice Antonin Scalia who will enforce the rule of law and apply the Constitution as written. Given Gorsuch’s background, education, judicial decisions, and writings, there is little doubt that Scalia would approve.
This choice is crucial to protecting our liberties and our rights as citizens. In numerous decisions over the last few years, Scalia cast the crucial fifth vote. These include two Second Amendment cases, in which the majority threw out the virtual ban on guns imposed by the cities of Washington DC and Chicago. They also included the Citizens United decision that restored our First Amendment rights to engage in political speech and the Hobby Lobby challenge to Obamacare that defended our right to practice our religious beliefs without undue interference from the government.
Without a replacement that lives up to Scalia’s sterling record, there is no question that these holdings were in jeopardy and that the liberal justices on the court who believe in a “living” Constitution would write parts of the Bill of Rights out of the Constitution.
Gorsuch comes from a family with a proven conservative pedigree. His mother, Anne Gorsuch Burford, headed the Environmental Protection Agency for Ronald Reagan. He has exceptional academic credentials from Columbia, Harvard, and Oxford universities, and clerked for three federal judges, including Supreme Court Justices Byron White and Anthony Kennedy. If confirmed, Gorsuch will be the first justice to sit alongside his former boss.
He has been a partner in a major law firm, a principal deputy inside the U.S. Justice Department, a law school professor, and the author of various legal texts. He has served on the 10th Circuit Court of Appeals since 2006 and was confirmed by voice vote only two months after President George W. Bush nominated him.
Most importantly, Gorsuch has demonstrated that, like Scalia, he is a devoted textualist — meaning he interprets the law as it was actually written, rather than how he wishes it was written. He has criticized those who would circumvent the democratic political process by trying to use the courts to impose their social agenda on the American people. In a 2005 article in the National Review, Gorsuch warned that “as a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.”
Clearly he does not believe in legislating from the bench, a big problem with too many federal judges today, including several Supreme Court justices. In a recent speech at Case Western Reserve University School of Law, Gorsuch said that while legislators can “appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be,” judges should do neither. Instead, he asserted, judges should strive “to apply the law as it is, focusing backward, not forward, and looking to text, structure and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”
Echoing Scalia, Gorsuch has pointed out that if judges always like the conclusions they reach, they are “probably doing something wrong.”
In case after case, Gorsuch has applied these principles. In Hobby Lobby v. Burwell, a case that eventually made it to the Supreme Court, he joined an opinion against the Obama administration’s contraceptive and abortifacient mandate. Hobby Lobby argued that federal law protected it from a burden imposed by the government that violated its religious beliefs, and the court agreed.
In 2007, he joined a dissent in Summum v. Pleasant Grove City, a case involving the placement of a Ten Commandments monument in a city park. The Supreme Court ultimately ruled in favor of the monument, overturning the 10th Circuit’s decision and agreeing with the dissent’s point that the First Amendment allows the government to select the views it wants to express.
Gorsuch has questioned the validity of the Supreme Court’s holding in Chevron v. NRDC, which established a rule giving deference to decisions made by federal agencies. Many conservatives have criticized this rule because it gives too much power to bureaucrats in Washington, allowing them to effectively make, enforce, and interpret the law. Last year, in Gutierrez-Brizuela v. Lynch, he wrote an opinion declaring that this rule allows “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.”
That is exactly the kind of skepticism that President Trump needs from a justice to achieve Trump’s objective of reducing the power, reach, and size of the federal government and the administrative state. If we judge Neil Gorsuch by his record, he will be a worthy successor to Justice Scalia and faithful to the Constitution.