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.
In 1954, the US Supreme Court overturned Plessy v. Ferguson (1896) which held that racial segregation was constitutional as long as the facilities for each race were equal. In other words: “separate but equal. In Brown v. Board of Education the Court ruled that legalized segregation was unconstitutional:
We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.
White southerners, in a poetic phrase of my mother’s, went “banana factory.” They brought every possible resource against desegregation: violence, closing public schools, endless stalling. We have just passed the sixty-first anniversary of the “Southern Manifesto” which Strom Thurmond introduced to Congress on 12 March 1956. The manifesto read, in part:
The original Constitution does not mention education. Neither does the 14th Amendment nor any other amendment. The debates preceding the submission of the 14th Amendment clearly show that there was no intent that it should affect the system of education maintained by the States. The very Congress which proposed the amendment subsequently provided for segregated schools in the District of Columbia.
The objection here is that Brown violated the original intent of the framers of the Constitution and the Fourteenth Amendment. What followed Brown were innumerable writings decrying the Supreme Court’s decision because (it was claimed) the Court substituted their own judgment for the intent of the framers. Some of these articles were respectable, some less so, but all agreed that Brown violated good legal reasoning by abandoning the clear historical record on segregation. White southerners, and conservative legal scholars maintained this position in the face of the Civil Rights movement, the passage of the Civil Rights Act in 1964 and the Voting Rights Act of 1965. In other words, they dug themselves a deep, deep hole by maintaining that originalism required allowing continued racial segregation. In the opening of the 1970s, however, they realized they had to start climbing out of that hole.
By 1971, things had changed. No one could argue for legalized racial segregation and be taken seriously anymore. Even George Wallace‘s notoriously racist Presidential run in 1968 did not call for “segregation forever” as he had a decade earlier. Segregationists, if they wanted to remain viable public figures, had to backtrack, ask for repentance, or somehow explain away their earlier support for segregation. Unfortunately for William Rehnquist, when Nixon nominated him for the Supreme Court he was faced with a 1952 memo he wrote when he was a clerk for Justice Robert Jackson during the Brown litigation wherein he declared that, “I think that Plessy v. Ferguson was right and should be reaffirmed.” Rehnquist testified under oath, and repeated it in 1986 when Reagan elevated him to be the Chief Justice, that those were not his views, but merely an argument he prepared for Justice Jackson. (For what it is worth, he was probably lying). Nonetheless, it was clear that conservative judges must defend Brown even though they’d been attacking it for seventeen years.
The other signal event of 1971 was the first published originalist defense of Brown. Yale law professor Robert Bork (who would later be denied a seat on the Supreme Court for his reactionary views) published an article that held that Congress and legislatures were constitutionally permitted to pass laws banning all artistic expression, things like books and plays and movies, etc, because the First Amendment should only apply to pure political speech. Sure, it was a crazy thing to say and Bork later changed his mind, but the notable thing about the article for our purposes is that it defended Brown on originalist grounds. The details are important, because there were no details. Bork did not come to his conclusion by an examination of what Gorsuch calls the”text, structure, and history” of the Fourteenth Amendment, but a thought experiment about what the framers of the Amendment might or might not have thought. No historical research at all, no evidence to back up any of his claims, just Bork spinning a nice yarn for us. In the comic book trade we would call this “retconning” or the attempt to rewrite the canon so it makes sense in line with new developments (“No, that was the Earth Two Green Lantern, not the Earth One Green Lantern!”). In other words, Bork started the trend among originalists to “Us too!” the Brown decision to show that it can be justified on originalist grounds. There are several problems with this move, however.
First, how dare you? It is the ultimate arrogance for the originalists to show up to the civil rights party for the first time, almost 20 years after the struggle first began and announce that they are now cool with it. They stood in opposition to Brown for decades and now they want to see if they can make it fit into their worldview? Sixty years later, they are still writing articles trying to justify Brown only because of victories of their opposition exposed them as the defenders of the racist national order they were all along. Instead of humility and a reexamination of the premises of their jurisprudience, they storm in and attempt to claim our victory as their own? Thanks, guys, we’ve gotten this far without your “help” so maybe you should just sit over there and rethink your life choices. Too little and for damn sure too late.
Second, originalists claim that their doctrine means judges are restrained by the original meaning of the Constitution. Gorsuch tells us, “judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views (p. 909). But that is exactly what they are doing when they try to find an originalist account that justifies Brown. They accept the Brown decision as correct and then go back and try to find a historical justification for it; precisely the opposite thing they claim originalism prevents them from doing. Their political views, that legal segregation is wrong, are exactly what is guiding their interpretation rather than their interpretation guiding their legal views. Some originalists recognize this problem but say, it “does not seem like a big deal. Judges are human, and if they are going to deviate from their preferred interpretive method, erring in favor of a desirable and popular precedent is better than the opposite.” Admitting your doctrine doesn’t do what it is designed to do seems like a very big deal indeed and is precisely what the critics of originalism point out all the time.
The very attempt to fit Brown into an originalist jurisprudence proves the failure of their method. And betrays the truth that originalism is simply a lie conservatives tell to justify their reactionary policy choices. Robert Bork, the original originalist, always claimed that his judicial decisions were the result of his strict judicial philosophy. And then, once he retired from the bench he wrote a terrible book, Slouching Toward Gomorrah in which he blames all the ills of modern society on nasty liberals who are destroying America. Yet we were supposed to believe that his judicial philosophy just coincidentally mirrored his political opinions. I didn’t buy it with Bork and I’m not buying it with Gorsuch, despite all his purported folksy charm. He’ll be a reactionary disaster for the country if he’s appointed.
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