Watch What You Wish For
Could Justice Neil Gorsuch Become Conservatives’ Next Worst Nightmare?
If Gorsuch is telling the truth about his legal philosophy, he more closely resembles Kennedy than Scalia.
It’s widely assumed that Judge Neil Gorsuch’s refusal to answer any substantive questions about Supreme Court precedents is, basically, insincere. There’s a reason the Heritage Foundation, the Judicial Crisis Network, and the religious right have lined up behind Gorsuch: because they know full well that his “originalism” inevitably restricts civil rights for minorities, strengthens the strongest, and weakens the modern regulatory state. Which is why he’s not admitting what he believes.
But what if Gorsuch means it?
What if he actually means statements like “I’m not going to say anything here that would give anybody any idea how I’d rule in any case like that.” Or, “How I’d apply this to a specific case, I can’t talk about that.” Or “I can’t promise you how I’m going to rule in a particular case—I will exercise the care and consideration of precedent that a good judge is supposed to.”
If he really means all of this, then Gorsuch could turn out to be not the next Justice Antonin Scalia, an ideologue to the end, but Justice Anthony Kennedy, whose case-by-case reasoning eventually led him to be the darling of the left and bitter enemy of the right.
Now, the smart money says that Gorsuch is being smart. He knows the confirmation hearing is a political charade, that Republicans will vote for him and Democrats against him, and that this battle will come down to a filibuster or a compromise of some kind. So he’s doing what liberal and conservative nominees have done for decades, which is refuse to say anything about controversial cases like Roe v. Wade or Citizens United, or issues like same-sex marriage or voting rights.
That is certainly how Gorsuch conducted himself this week. And that’s why Sen. Dianne Feinstein (D-CA) told him, “You have been able to avoid specificity like no one I have ever seen before.”
But let’s entertain the possibility that he’s telling the truth. That his version of originalism is simply that judges should “try to understand what the words on the page mean, not import words that come from us,” as he said Wednesday.
And, even more importantly, that “as a judge, my job is to decide cases as they come to me. If I start suggesting that I prefer or dislike this or that precedent, I’m sending a signal—a hint, a promise, a preview about how I’d rule in a future case.”
This is Kennedy’s legal philosophy, not Scalia’s. Since being appointed in 1987, Kennedy has consistently eschewed consistency. He has not enunciated any grand theory of law, save that there is no grand theory of law. (Indeed, the one time Kennedy really swung for the fences, in 2015’s marriage-equality case of Obergefell v. U.S., the soaring rhetoric had little to do with the actual holding.) He is a pragmatist who searches for the middle ground, not an ideologue like Scalia (or, at times, Justice Ruth Bader Ginsberg) who stakes out positions well outside of the legal mainstream. He is a fan of balancing tests and case-by-case analysis.
This has often led to frustrating results. In the area of affirmative action, for example, Kennedy has rightly been accused of muddying the waters more than clarifying them. In last year’s surprise decision that race could be factored into college admissions decisions, Kennedy wrote that race could be a factor, but not a primary factor; using it to promote diversity was allowable, but only as a last resort; and that a “holistic consideration” was acceptable, but quotas were not.
That split-the-baby approach saved the two affirmative-action programs at issue in the case, but it will surely lead to more lawsuits as litigants haggle over how primary is too primary, how holistic is holistic enough, and so on.
More relevant for Gorsuch, Kennedy’s moderate approach has made him conservatives’ least favorite justice—at least until Chief Justice John Roberts saved Obamacare (twice). Kennedy voted to preserve Roe when conservatives expected him to vote to overturn it. His civil libertarianism has protected flag burners and pornographers. James Dobson, leader of the Christian right group Focus on the Family, called him “the most dangerous man in America.”
Indeed, by the early 2000s, after Kennedy had turned away from his initial conservatism, he became a symbol for conservatives of the kind of nominee to avoid in the future. A New York Times report from 2005 was titled “In Battle to Pick Next Justice, Right Says, Avoid a Kennedy.”
More recently, Kennedy’s opinion on affirmative action, and his vote with the court’s liberal wing on abortion, rejecting junk science as a pretext for abortion restrictions, have put him back in the crosshairs. John Podhoretz, for example, recently tweeted about Kennedy: “Everybody’s upset about Brexit, but basically the United States is now being governed by one 80-year-old man.”
But that’s what you get from a non-ideological, case-by-case decisionmaker. The right gets Citizens United and a vote for an expansive Second Amendment in D.C. v. Heller, the left gets marriage equality and abortion rights. Republicans are busy crowing about Gorsuch’s supposed lack of bias (in the process, confusing bias with ideology), but when Kennedy put that theory into practice, they’ve howled in anger.
Indeed, Kennedy is so widely regarded as a moderate today that rumors of his imminent retirement have prompted this writer and others to suggest a “grand compromise” in which Democrats allow the conservative Gorsuch to replace Scalia, and Republicans agree to nominate a judicial moderate (like, say, Merrick Garland) to replace Kennedy.
Could a Justice Gorsuch turn out similarly? If he’s telling the truth about his judicial philosophy, that would be the logical conclusion.
Now, it’s still quite likely that Gorsuch is basically blowing smoke. Certainly, he has been far more disingenuous than his supposedly upright image would suggest. Sen. Richard Blumenthal (D-CT) was certainly right when he said to Gorsuch, regarding core privacy cases from Griswold to the present, “I’m not asking you to talk about a future case or controversy. I’m asking whether you accept the basic core principles of right to privacy that are articulated in those decisions.”
Obviously, Gorsuch understands that distinction as well as Blumenthal does, and he’s refused to state a single philosophical position because his positions are as conservative as his backers say they are. He’s fibbing, in other words, just like when he preposterously claimed not to recall an email he wrote on torture that was surely discussed at length in his hearing preparations. That claim is ridiculous, as is his sudden inability to comment on legal principles.
But there really are only two options: Either Gorsuch isn’t telling the truth about his judicial philosophy, or he could be conservatives’ next worst nightmare.