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.