So how bad could Neil Gorsuch be?
As is turns out, when trying to assess President Donald Trump’s pick for the Supreme Court, this isn’t an especially easy question to answer.
We know that Gorsuch placed the rights of religious conservatives ahead of the rights of women seeking birth control coverage. We know that he took highly unusual steps in an attempt to cut off funding for Planned Parenthood. We know that he wants to consolidate power in the federal judiciary at the very moment that Republicans are seizing control over that branch of government, and that such a newly empowered judiciary would have the power to slash and burn labor and environmental regulations.
We also know that Gorsuch was a great admirer of the late Justice Antonin Scalia, a conservative icon. Indeed, President Trump’s Supreme Court nominee says that he literally burst into tears upon learning of Scalia’s death.
But there’s also a great deal we don’t know. Gorsuch has never heard a major challenge to the Affordable Care Act. He’s never ruled directly on whether religious views can trump anti-discrimination laws. And he has no major national security opinion.
Federal appellate judges hear randomly assigned cases, most of which are fairly routine matters with a clear, correct answer under existing law. They do not have the power to overrule Supreme Court opinions, and it is even quite difficult for them to overrule their own court’s previous decisions.
Unlike Supreme Court justices, who must only take their Court’s precedents under advisement, lower court judges are hemmed in by other people’s decisions. You can only learn but so much about them from how they decide most of their cases.
What we do know about Judge Gorsuch, however, should trouble anyone who believes that America’s legal landscape is better today than it was 100 years ago.
Despite his professed admiration for Justice Scalia, Gorsuch’s record is more consistent with Scalia’s much more conservative former colleague, Justice Clarence Thomas. Thomas combines an extraordinary skepticism of the American regulatory state — he embraces the same reading of the Constitution that the Supreme Court once used to strike down child labor laws — with a broadly permissive view of the president’s power to curtail civil liberties in the name of national security.
Indeed, Trump named Thomas as his favorite member of the Supreme Court during his presidential campaign. What we know of Gorsuch suggests that Trump may have found something close to Thomas’ mirror image.
The two originalists
Scalia and Thomas are both associated with “originalism,” the idea that judges must interpret the Constitution as its words were originally understood at the time they were adopted. Yet, despite superficial similarities, there’s a great deal of difference between the two men’s approach to the law.
Scalia’s early career straddled two legal eras. He graduated law school part-way through the liberal Warren Court era. He led a federal agency on the day that Roe v. Wade was decided. So Scalia knew what it felt like to fear the Supreme Court, and he often praised originalism as a means to constrain judges.
“The main danger in judicial interpretation of the Constitution,” Scalia told a law school audience just a couple of years after he joined the Supreme Court, is “that the judges will mistake their own predilections for the law.” And, indeed, a tight thread of judicial restraint weaved its way through Scalia’s decisions — at least for most of his career.
Scalia reserved much of his strongest invective for his opinions opposing abortion rights or gay rights — opinions that, whatever else you may think of them, were fundamentally about why Scalia wanted the courts to play less of a role in society. For most of his time on the Supreme Court, Scalia called for judges to defer to federal agencies. He chipped away at federal power along the margins, but rejected calls to return to the era of child labor.
Justice Scalia also insisted, albeit rarely, that there are limits on the president’s power in wartime. Most notably, in Hamdi v. Rumsfeld, he wrote that, except in very unusual circumstances, the Constitution does not permit U.S. citizens to be detained without charge.
Clarence Thomas’ America is a place where children labor in cotton mills. Where factories bletch poison into the air. Where Congress must bend to the will of Jim Crow states, and where a president can serve as judge, jury and jailor.
Thomas came of age at a different time than Scalia. Twelve years Scalia’s junior, Thomas entered law school shortly before President Nixon appointed his third and fourth justice to the Supreme Court, effectively ending liberal dominance of the Court and ushering in the judiciary’s 45 year-long drift to the right. Thomas’ own appointment gave control of the Court to a bloc of five conservative Reagan and Bush appointees.
Justice Thomas’ opinions suggest that the younger conservative, who was in college when Chief Justice Earl Warren left the Supreme Court, never developed the skepticism of judicial power that animated some of Scalia’s writing. Thomas embraces the same narrow view of Congress’ power to regulate economic matters that a 1918 Supreme Court opinion used to strike down a federal child labor law — and the same view that many conservatives in the 1960s used to argue that a nationwide ban on whites-only lunch counters is unconstitutional.
Similarly, Thomas is more hostile than any other member of the Supreme Court to federal regulation. Often, Congress lays out a broad policy goal, then delegates to a federal agency the task of filling in the details of that policy. This enables experts within that agency to study the problem, and to adapt to new developments that Congress is not dynamic enough to respond to.
Consider, for example, the Clean Air Act. A provision of this law requires the Environmental Protection Agency to determine “the best system of emission reduction” that is both cost effective and feasible given existing technology, and then set standards which ensure that certain sources of pollution achieve similar levels of emission reduction. This is a complicated process that requires intimate knowledge of business realities, emerging technologies, and ever-changing circumstances within the energy industry.
Congress — a cacophonous body of 535 individuals with separate agendas and ambitions — is simply not capable of performing this task. But, by delegating this portion of our environmental policy to an agency, the Clean Air Act ensures that America’s efforts to combat pollution are cognizant of changing conditions and (at least somewhat) up to date.
Justice Thomas, however, wants to drastically undermine Congress’ ability to empower agencies in this way. In a 2015 opinion, Thomas wrote that “generally applicable rules of private conduct” can only be created by an act of Congress. Any decision that “involves an exercise of policy discretion,” Thomas added, “requires an exercise of legislative power.” Laws like the Clean Air Act cannot exist under Thomas’ framework.
A few months later, Thomas spoke out against one of the foundations of federal administrative law. Under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., when a federal law permitting an agency to regulate is ambiguous, courts will defer to that agencies’ interpretation of the law so long as its interpretation is “based on a permissible construction of the statute.”
Thomas, however, claimed that this Chevron doctrine “raises serious separation-of-powers questions.”
One more aspect of Thomas’ understanding of the Constitution is worth noting. In light of the justice’s extraordinary skepticism towards the regulatory state, it is tempting to assume that Thomas would also be skeptical of executive overreach. But this assumption would be wrong.
In Hamdi, the very same case where Scalia warned against detaining citizens without criminal charges, Thomas laid out a simply breathtaking vision of executive power. “The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained,” Thomas wrote. Once that determination was made, courts “lack the expertise and capacity to second-guess that decision.”
Indeed, under Thomas’ vision of the Constitution, the president could “unilaterally decide to detain an individual if the executive deems this necessary for the public safety even if he is mistaken.”
Clarence Thomas’ America is a place where children labor in cotton mills. Where factories bletch poison into the air. Where Congress must bend to the will of Jim Crow states, and where a president can serve as judge, jury and jailer.
And, while the evidence is incomplete, there is good reason to believe that Judge Gorsuch shares this vision of America.
Where Gorsuch falls on the originalist spectrum
Major cases confronting the scope of Congress’ power to regulate the economy are rare — the last one was probably the wave of lawsuits seeking to repeal the Affordable Care Act, and only a small minority of judges heard these cases.
Cases concerning the scope of the president’s national security powers are even rarer, especially in the United States Court of Appeals for the Tenth Circuit, where Gorsuch sits. National security cases are much more likely to arise in the DC Circuit, a fairly specialized court which hears a large number of cases involving the inner workings of the federal government.
Yet, while Gorsuch could have kept his head down, decided the (mostly pretty boring) cases that were assigned to him, and kept quiet about any grand plans he might like to implement if he’s ever appointed to the Supreme Court, Trump’s nominee has been surprisingly open about just how much his vision of the law aligns with Justice Thomas’.
Gorsuch openly identifies as an originalist, for starters. In a 2016 lecture, Gorsuch praised what he saw as Scalia’s broader vision of the law, that judges should read the law “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.”
Judge Gorsuch’s self-identification with conservative originalism places him on the same spectrum as Scalia and Thomas. And, where Gorsuch has weighted in on questions that divided these two justices, he’s shown far more sympathy for Thomas’ approach over Scalia’s.
In Whitman v. American Trucking, for example, Scalia rejected Thomas’ wholesale assault on agency regulation, instead embracing the longstanding rule that Congress may delegate power to an agency so long as it lays down “an intelligible principle to which the person or body authorized to [act] is directed to conform.”
Yet, in a 2015 opinion, Gorsuch suggested that the Supreme Court should reinvigorate the nondelegation doctrine, a largely defunct principle limiting Congress’ ability to delegate power to federal agencies.
Admittedly, Gorsuch’s opinion dissenting from a request to rehear United States v. Nichols does not explicitly align with Thomas’ view that agencies cannot exercise “policy discretion,” but Gorsuch is also a lower court judge forced to operate within the precedents handed down by his judicial superiors. And a segment of his Nichols opinion laying out what he views as the “most traditional delegation tests” suggests that Gorsuch may believe that Congress can only make very minor delegations of power to agencies — such as the power to design a stamp that margarine manufactures must affix to their packages to show that they have paid a particular tax.
Gorsuch’s concurring opinion in Gutierrez-Brizuela v. Lynch, meanwhile, offers a much clearer window into his views. The Chevron doctrine, Gorsuch wrote, “seems more than a little difficult to square with the Constitution of the framers’ design.”
What we know about Gorsuch
So let’s take stock one more time of what we know about Judge Gorsuch.
We know that he embraces the same theory of constitutional interpretation touted by conservative Justices Scalia and Thomas.
We know that Gorsuch votes as a staunch social conservative, siding against women seeking birth control and against Planned Parenthood. He is all but certain to be a vote against Roe v. Wade.
We know that Gorsuch is inclined to overrule Chevron, a decision that would drastically weaken agencies like the EPA and consolidate power within the judiciary at the very moment when Republicans are about to seize control over the courts.
We know that, when confronted with issues that divide Scalia and Thomas, Gorsuch appears to land to Scalia’s right.
This evidence suggests that Gorsuch may vote consistently with Justice Thomas if confirmed to the Supreme Court. At the very least, senators should know whether Gorsuch shares’ Thomas’ views about matters such as child labor laws before they vote on Gorsuch’s nomination.
To help the Senate make this determination, here are some questions senators might ask Gorsuch at his confirmation hearing to determine just how closely his views align with Thomas:
- “Judge Gorsuch, do you agree with Justice Thomas that Congress’s power to regulate ‘commerce’ does not include the power to regulate “manufacturing and agriculture?” In the late nineteenth and early twentieth centuries, the Supreme Court created a rigid divide between the production of goods (which it said Congress could not regulate) and the transport of goods (which it said Congress could regulate — most of the time). This divide formed the basis of decisions hobbling federal antitrust law and striking down the federal ban on child labor.
- “Do you believe that Hammer v. Dagenhart was correctly decided?” Hammer was the 1918 decision striking down the federal ban on child labor. It was overruled in 1941.
- “Do you believe that Heart of Atlanta Motel v. United States and Katzenbach v. McClung were correctly decided?” Heart of Atlanta and McClung upheld the federal bans on race discrimination by hotels, motels and restaurants. Both are inconsistent with Justice Thomas’ view of congressional power.
- “Do you agree with Justice Thomas that Congress cannot delegate any matter to a federal agency that “involves an exercise of policy discretion? Do you agree with the “intelligible principle” standard?” The intelligible principle standard has governed Congress’ authority to delegate power to agencies since 1928.
Typically, asking a judicial nominee about their view of a particular case is a fruitless exercise. The nominee typically offers a canned response that they cannot opine on matters that are likely to come before them if confirmed.
But there is no sane world where the constitutionality of child labor laws will come before the Supreme Court again, or where the legal theory espoused by Heart of Atlanta or McClung would be questioned. If Gorsuch views these as the sort of matters that are likely to come before the Supreme Court in the future, that would itself be a revealing answer.
It’s not a high bar to say that a judge must confirm that they will not rip out three generations of foundational law before they can call themselves “justice.” But there’s nothing in Gorsuch’s record suggesting that he won’t do exactly that if confirmed to the Supreme Court.