People For the American Way

Gorsuch’s Approach to the Law Would Make Him a Dangerous Justice

News and Analysis

Who is Neil Gorsuch? Most people had never heard of him until Tuesday night, when President Trump introduced him to the nation as his nominee to the Supreme Court.

The far right loves Gorsuch because they see him as being nearly identical to Justice Scalia, whom they portray as the ideal Supreme Court justice. That in itself should set off alarm bells: Scalia did great damage to our nation and to the American people during his three decades on the Court. Sometimes in the majority and sometimes in dissent, Scalia:

  • helped eviscerate the Voting Rights Act in the name of states’ rights, enabling a vast increase in voter suppression tactics;
  • opened the floodgate to allow unlimited corporate money into our elections, empowering the already-powerful and drowning out the voices of the people elected officials are supposed to represent;
  • vigorously and emotionally opposed any court ruling that would treat LGBT people as people with rights and dignity, rather than “outsiders” the majority could hurt in any number of ways in the name of “morality;”
  • regularly twisted the law and bent logic like a pretzel to find ways to block victims of discrimination, anti-competitive business behavior, grossly defective and dangerous consumer goods, and others from even being able to file a case against unlawful conduct;
  • and showed deep hostility to a woman’s constitutional right to make her own reproductive decisions, including whether to have an abortion.

This is not a legacy to be proud of. If Gorsuch’s supporters say he’s just like Scalia, that alone is enough to tell us that he should not be on our Supreme Court.

But we do know more about Judge Gorsuch … a lot more.

Weakening Federal Agencies, Empowering Big Business and Wall Street

For one thing, Gorsuch has gone even farther than Scalia in embracing an extreme and far-reaching legal theory that , if put into practice, would severely restrict the federal government’s ability to effectively address national problems.

In a 2016 immigration case called Gutierrez-Brizuela v. Lynch, Gorsuch indicated that he would weaken or eliminate the Court precedent holding that administrative agencies have great flexibility in how they carry out their missions. Called the Chevron doctrine, it essentially directs courts to uphold an agency’s interpretation of the congressional statutes that empower it as long as its interpretation is reasonable – even if the court would have chosen a different interpretation on its own.

This flexibility is critical, since Congress has nowhere near the resources nor the expertise to address all the details of every issue it addresses. That’s why Congress delegates a limited amount of authority to the agencies, sometimes instructing them very specifically on details, but usually giving them parameters within which to work. For instance, the EPA has been able to interpret the Clean Air Act in a variety of ways to more effectively address advances in scientific knowledge, technology, and popular understanding.

This principle also makes executive agencies more answerable to the popular will. The Chevron doctrine gave President Obama the flexibility he needed to effectively address environmental and climate issues in a variety of ways. And when the people elect a new president, that person is given the flexibility to effect their agenda. As in all things in a democracy, policies will change from administration to administration in response to the votes of the American people, but that is a feature, not a bug.

Without the Chevron doctrine, agencies’ hands would be tied by however a particular judge or court interpreted the law. That is certainly not what Congress intends when it gives agencies a wide but not limitless grant of authority. And it certainly is not the way for the federal government to effectively tackle problems that officials have been elected to address.

But it gets worse: Judge Gorsuch has broached the possibility of limiting agency authority on a vastly broader scale. Under the Constitution, Congress cannot simply delegate its lawmaking authority to an agency without giving some parameters or guidance on how the agency should make its decisions. But how much authority Congress delegates to agencies is its decision. Only twice has the Supreme Court struck down a congressional delegation of authority, and that was under the anti-New Deal Supreme Court of 1935.

That history prompted Justice Scalia himself to write that the justices:

have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.

But if a Justice Gorsuch were to increase the Court’s “second-guessing,” an enormous range of laws giving agencies rulemaking authority could be at risk. If the Chevron doctrine were to be eliminated, agencies would become far less equipped to address the critical issues that they are charged with taking on . As the federal government’s ability to address workplace safety, workers’ rights, environmental problems, investment abuse, consumer safety, and any number of other issues sharply diminishes, the power of Big Business and Wall Street to impose their will on every American would be greatly enhanced. The last thing we need is to give these already-powerful entities free rein to harm and take advantage of people in even more ways than they already do.

Justice For Some

While Gorsuch would be a friend to large corporations, he would be no friend to those he dislikes who use the courts to vindicate their rights. In 2005 (before he became a judge), he wrote an article in the National Review—“Liberals’N’Lawsuits”—that showed, at best, a complete misunderstanding of the very purpose of our judicial system, and at worst, an inability to separate his personal beliefs from his jurisprudence.

In the article, Gorsuch harshly criticized progressives who turn to the courts to vindicate their rights, after first giving the requisite praise to Brown v. Board of Education:

There’s no doubt that constitutional lawsuits have secured critical civil-rights victories, with the desegregation cases culminating in Brown v. Board of Education topping the list. But rather than use the judiciary for extraordinary cases, … American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.

Brown, like so many other cases, came about because African Americans faced harsh discrimination resulting from the political process. Because the Constitution guarantees equal protection under the law, they turned to the courts to vindicate what they claimed were their rights, and the Court agreed with them (as Gorsuch apparently does, as well).

But if same-sex couples face enormous discrimination as a result of the democratic process—denial of the right to marry, denigrating treatment as just two unrelated people for the purposes of Social Security or federal taxes, prohibitions from teaching in public schools, rejection of their ability to serve our nation’s armed forces or intelligence community—and if they feel their constitutional rights are being violated, why is it illegitimate for them to seek to have their rights vindicated in the courts? Why is the political process the only appropriate recourse for them, but not for African Americans?

Is it because Gorsuch believes racial segregation was worse? If so, that should not be a factor: Suffering is not a contest, where only those who suffer the most get to argue their case before the courts.

It certainly does not appear that Gorsuch believes courts should refuse to hear cases like this – only that they should decide cases the way he wants. There is no indication I know of that he condemned the Supreme Court for addressing the merits of the 1980s case in Bowers v. Hardwick, when the justices upheld punitive laws criminalizing sex between people of the same sex. But apparently it was wrong for same-sex couples to turn to the courts again years later and eventually have that case reversed in Lawrence v. Texas.

So Judge Gorsuch apparently believes it is legitimate for some people who feel their constitutional rights have been violated by the political process to ask a court to address their claims. But when those people are LGBTQ, or believers in church-state separation, or are otherwise what he dismisses as “liberal,” Gorsuch believes it is illegitimate for them to seek justice from the courts.

But in the American constitutional system, that’s what courts are supposed to do: The whole purpose of having judges is so they can analyze cases brought to them and make the decisions they believe are legally correct.

Gorsuch, like much of the Religious Right, seems to disagree. In his article, he was doing more than disagreeing with judicial decisions: he was criticizing the parties who turned to the courts in the first place, leading to those decisions. He was criticizing certain groups for daring to turn to our nation’s courts to vindicate their constitutional and other legal rights.

This is not a man who should be confirmed as a Supreme Court justice.