Future to the Back: So much Gorsuch!


Yes, I know this is my second post in a row about Gorsuch. I figure, when a guy is going to spend four decades on the Supreme Court, he’s worth talking about.

Let’s talk verbs for a minute: action words! Think about the difference between “inventing” and “discovering” If you’ve invented something, then you’ve created something new: something that did not exist before: so before J.K. Rowling invented it, Hogwarts did not exist. Whereas we say that Alexander Fleming discovered penicillin: that mold was there before, all he did was find it. Novelists, painters, sculptors, architects, and even engineers create things. Scientists discover things.We talk about our branches of government with the same words:  Legislatures make policy. Judges find the law.

We run into problems however, when someone is inventing/creating something but claim to be discovering it. This is the problem with originalist jurisprudence. They think they are finding something but they are really creating something.

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Neil Gorsuch and the Problem of Racial Segregation

So far, the two most exciting things that happened during Neil Gorsuch’s nomination hearings for the Supreme Court was him admitting he had no clue how to keep that trucker from freezing to death other than, “It would suck to be that guy.” and a wonderful Marshal Mcluhan moment when the Supreme Court struck down one of Gorsuch’s rulings during his second day of testimony.

If you want a detailed analysis of how Gorsuch has ruled in key cases, there are places you can do that. I want to focus on Gorsuch’s judicial philosophy. He’s an advocate of a doctrine called “originalism.”  There are different forms “originalism” can take, but the idea is that judges should base their decisions on the “original meaning” of the Constitutional provision in dispute. Is there a question about what “equal protection” of the Fourteenth Amendment means? The answer lies in the past: what did the phrase mean when the Amendment was passed? For those of you scoring at home, that’s 1868. Gorsuch is quite explicit about how judges should make decisions:

Judges should instead strive (if humanly and so imperfectly) 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—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best. (p. 906)

The motivation for this view is rather noble, at least on the surface. Judges are very powerful figures in government. Often appointed, not elected and often for life. They do not answer to the people as legislators or executive branch members do. Supreme Court Justices are the ultimate authorities, US Supreme Court decisions are binding on us all and can only be overturned by the Supreme Court itself, or perhaps through the difficult process of amending the Constitution. By grounding judicial decisions firmly in the past meaning of the statute or Constitution, originalism, purports to be a principled way to settle disputes. The alternative, Gorsuch claims above is a judge’s “moral convictions” (read: “personal whim”) or “policy consequences they believe might serve society best” (read, “best guess”). Originalism purports to be a method of reining in the power of judges, what is often called “judicial restraint.” The legislature, because it is more directly reflective of the democratic will of the people, originalists argue, are better suited to make policy. Defer to the people (legislature or Congress) unless the “text, structure, and history” clearly direct you to overrule them.

That’s the theory, anyway. In reality, originalism operates nothing like this. There is no reason to think that originalists are any less activist in turning over legislative decisions than adherents of other forms of jurisprudence. More worrying is that orginalism is merely a convenient way for judges to enact their conservative and reactionary policy preferences. It seems to me, given the backward-facing nature of originalism, it is designed to promote reactionary politics. A look at the history of Brown v. Board of Education is a good example of this.

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Sebastian Gorka and the Tale of the Subversive Hungarians


Just in case there was any doubt in your mind, we now have an official declaration that the Muslim ban is aimed at Muslims. The loud and repeated howling from Candidate and now President Trump gives us all the evidence we need to conclude that the Muslim ban is aimed squarely at Muslims. Or, as the Court concluded in Trump’s most recent defeat: “The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” Most 70-year olds know that words carry consequences, but apparently Trump has yet to learn that lesson.

The vetting process for refugees is long, complicated, and thorough. This might explain why there have been no fatal terrorist attacks from the countries targeted by the Muslim ban. But! One thing we hear from the Alt-Right is that we need to ban Muslim refugees because the governments of those countries have collapsed and therefore we cannot discern who is dangerous and who is not. Breitbart “News” among others often circulates this claim (do I need to tell you that this claim isn’t really true?). Therefore, the vetting process is not only useless, it is all but impossible. We heard the same thing from the American right sixty years ago.

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White Babies Only?

I usually don’t talk about this because I want people to love me for who I am rather than the glamour of my past life, but I grew up in Fort Dodge, Iowa. Yes, the same Ford Dodge that was home to Karl King, famous composer of marches, considered the equal of John Philip Sousa. But, people ask, wasn’t he P.T. Barnum‘s favorite composer and didn’t he compose Barnum & Bailey’s Favorite March? Yes, I admit modestly, the very same Fort Dodge. Speaking of circuses, they often continue, wasn’t Fort Dodge where the gypsum was mined to create the famous hoax, the Cardiff Giant? Yes, indeed, I tell them. In fact, a highlight of the Fort Dodge Fort Museum is a replica of the very same giant. But Fort Dodge wasn’t all circus music and beloved fake giants. I loved Dolliver State Park, named after U.S. Senator John Prentiss Dolliver, a well-respected and formidable politician. Here’s downtown Fort Dodge in 1909, when Dolliver was making us all proud:


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Jeff Sessions, Madison Grant, and the Gopher State


I moved to Minnesota when I graduated college in nineteen-mumblemumble. Met my lovely wife there, got married there, had my first grownup job there, went to graduate school there, and I loved all of it. My godson lives there and my kids’ godmothers live there. We moved out in December 1993 but I’d move back there in an instant. The Twin Cities are awesome.

When I moved out, a quarter century ago, the Twin Cities was home to much more than Prairie Home Companion and lutefisk. By 1993, the Cities had already received several immigrant waves of Hmong from Vietnam and Laos, and Somali immigration was just beginning. Now there are tens of thousands of Somali immigrants in Minnesota.

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