President Trump’s ongoing tirades blasting the federal courts for not obeying him has made people even more aware of the importance of an independent judiciary. It also gave Judge Neil Gorsuch a chance to demonstrate whether he would act as an independent check on executive power were he on the Supreme Court, a test he failed.
In what could have been a White House effort to make Gorsuch seem independent, the nominee told senators that Trump’s assault on the independent judiciary was “disheartening” and “demoralizing.” As PFAW’s Drew Courtney has said about Gorsuch’s comments:
To be clear: Donald Trump’s pattern of attacks on federal judges is more than demoralizing — it’s a threat to the separation of powers and our constitutional system, and it’s hard to imagine a more tepid response than to call them “disheartening.”
This is no surprise: Gorsuch gave us his vision of judicial independence over a decade ago in a National Review article called “Liberals ‘N’ Lawsuits,” an article that will become increasingly familiar to Americans over the course of the nomination. He contended that progressives were improperly using the courts to achieve ends such as church-state separation and marriage equality, which he reduced to “social policy.” He wrote:
In constitutional litigation, too, experiments and pilot programs — real-world laboratories in which ideas can be assessed on the results they produce — are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. 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.
At the same time, the politicization of the judiciary undermines the only real asset it has — its independence. Judges come to be seen as politicians and their confirmations become just another avenue of political warfare. [emphasis added]
So Gorsuch seems to have been making clear how he defines judicial independence:
- Progressives who face democratically-enacted unconstitutional measures are only using courts to push social change, not to vindicate their rights.
- Judges who agree with progressives’ legal arguments are not acting independently.
- By implication, judges who issue conservative rulings in these areas are acting independently.
Of course, that isn’t at all what judicial independence is about. It’s about judges who faithfully decide cases on their merits, with favor towards none, and with no fear of reprisal by the other branches of government. It’s about judges who care less about the conservative answer or the liberal answer and more about the right answer. It’s about judges whose loyalty to the Constitution outweighs loyalty to any political party.
Judge Gorsuch apparently believes that independence is defined by whether the result is politically conservative or not; so his tepid response to a Republican president’s attack on the judiciary perhaps is, for Gorsuch, just another example of his judicial “independence.”