No Off Switch

What Neil Gorsuch Should Say About the Courts, and the Rule of Law

Supreme Court confirmation hearings are often national civics lessons. This one comes at a moment when we’re in need of just that.

President Trump’s recent attacks on the so-called judges who’ve halted his administration’s two attempts at a travel ban have prompted an important—and unusual—public discussion about the role of the courts.

When Judge Neil Gorsuch is asked about those comments, along with his judicial philosophy and legal views, at his Supreme Court confirmation hearing before the Senate Judiciary Committee this week, it will provide him an opportunity to reaffirm some key principles about the rule of law:

1. Courts have the power to review actions by the other branches of government.

When the courts first heard challenges to the travel ban, the administration took the position, both publicly and in court (PDF), that Trump’s executive order was unreviewable—even if it violated the Constitution.

That’s not how our government works. Courts regularly hear challenges to actions by the executive branch or Congress, even when they involve sensitive areas like national security. Their job is to evaluate whether they pass legal and constitutional muster.

This is not to say that courts owe no deference to policy assessments by the other branches—they do. And procedural hurdles sometimes keep courts from getting to the merits of a case. But it should be beyond debate that, in the words of the Supreme Court, Congress and the executive branch lack “the power to switch the Constitution on or off at will.” Gorsuch has the chance to explain this principle—and assure us he agrees with it.

2. Personal attacks on judges for their rulings should be off-limits.

Gorsuch should also take the opportunity to expand on his remarks to senators during private meetings indicating that Trump’s attacks on judges were “demoralizing” and “disheartening”—and explain exactly why they crossed the line.

To be clear, there is nothing wrong with criticizing a judicial ruling. But that is very different from personal attacks on the character or legitimacy of a judge—which is what Trump did when he suggested that the judges hearing his case were biased and “political,” or when he used the term “so-called judge.”

This kind of personal targeting, especially by the president, can put judges’ safety at risk. (Just look at the reported threats against judges hearing cases against the travel ban.) It also undermines hard-fought norms that help insulate judging from inappropriate political pressure, and it risks delegitimizing courts in the eyes of the public. This is more than just “disheartening,” and Gorsuch should tell us why.

3. For courts to operate effectively, we need judicial independence.

Gorsuch can also put his defense of the courts in broader context—telling us why our constitutional system tasks courts with the job of interpreting the law.

Federal courts are far more insulated from politics than the other branches of government. Judges are appointed, not elected, for example, and they enjoy lifetime tenure. This is no accident. Judicial independence is crucial to courts’ ability to defend individual rights and the rights of racial and other minorities, and to protect our political institutions. As Alexander Hamilton explained, judicial independence enables courts to be “bulwarks of a limited Constitution.”

But this system only works if political actors respect the difference between politics and judging. For example, as Chief Justice William Rehnquist recounted, there is a long-standing political norm, dating to the 1805 impeachment trial of Supreme Court Justice Samuel Chase, that judges should not be impeached for their rulings on the bench. Such principles, in Rehnquist’s words, have been “enormously important in securing… judicial independence.” In the face of Trump’s heated rhetoric about courts, Gorsuch should talk about why we need judicial independence, and explain what puts it at risk.

4. Even if you think the court got it wrong, everyone, including the president, must obey judicial rulings.

Finally, Gorsuch should address a lingering subtext to Trump’s recent attacks on the courts: the suggestion that the president might not follow a court order he disagrees with.

No modern president has defied a court order—not even when President Nixon was ordered to hand over the White House tapes that effectively ended his presidency. While there are historical examples of so-called presidential “non-acquiescence,” they are rare and have usually precipitated (or been precipitated by) crises.

Respect for judicial rulings is rooted in the structure of our constitutional system, where no one, not even the president, is above the law. As Chief Justice John Marshall wrote in Marbury v. Madison more than 200 years ago, “The government of the United States has been emphatically termed a government of laws, and not of men.” Court decisions are not optional—and to suggest otherwise is a grave threat to our constitutional democracy.

Supreme Court confirmation hearings are often national civics lessons. In this moment, Gorsuch’s hearing is an invaluable platform to educate the public about the role of the courts.

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Alicia Bannon

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