Federal Courts and Nominations

OP-ED: Court nominee Neil Gorsuch cherry-picks from Constitution

As we’re certain to hear during this week’s Senate Judiciary Committee confirmation hearing, conservatives insist that Judge Neil Gorsuch of the Denver-based 10th Circuit should be confirmed because he is an originalist who will decide cases by following the Constitution’s text and history. But a review of his record — both his opinions and his nonjudicial writings — suggests that he is a selective originalist.

First, his record suggests that he is a judge who gives pride of place to the 1789 Constitution while ignoring the amendments added to the Constitution that limited the states, protected substantive fundamental rights and equality and gave Congress broad powers to help realize these constitutional promises.

Judge Gorsuch’s opinions as a court of appeals judge have not been shy in invoking the wisdom of Founding Fathers such as James Madison and Alexander Hamilton. He has written a number of thoughtful originalist opinions, particularly in cases construing the Fourth Amendment’s ban on all unreasonable searches and seizures.

His record when it comes to the amendments added to the Constitution in the wake of the Civil War — often called America’s Second Founding — however, stands in stark contrast. He has written many opinions interpreting the Fourteenth Amendment but he has never written any opinions that discuss the text and history of the Fourteenth Amendment. He has never celebrated the Framers who made equality a central constitutional value and ensured that states respected fundamental rights.

This is a gaping hole for an originalist judge.

Respect for text and history has to be for the whole Constitution, not just for parts of it. In fact, his cases in this area, more often than not, give a narrow interpretation to the individual rights protected by Fourteenth Amendment and an outsized view of the respect due to the states.

Second, even where Gorsuch looks at text and history, he sometimes reaches results that ignore first principles. His attack on Chevron — one of his most widely noted opinions — is a case in point. In seeking to eliminate one of the most cited cases in American law, Gorsuch tries to constitutionalize something that’s just not in the Constitution.

Gorsuch’s opinions portray administrative agencies as an unchecked fourth branch not countenanced by the Framers. But administrative agencies are not a modern invention; in fact, their history goes all the way back to the Founding. The idea that agencies can exercise delegated power to enforce a statute they administer — so long as they act consistently with the underlying statute — has a rich history from the Founding on and has been noted by scholars as well as Justice Antonin Scalia and others on the Supreme Court. This reflects an important Founding principle: the president cannot execute the law on his own; he must rely on subordinates to do so. This has been discussed in numerous Supreme Court cases, the Federalist Papers and even by George Washington. Gorsuch’s opinions trying to take down the Chevron doctrine, however, do not grapple with this history.

Gorsuch argues it is unconstitutional to give agencies the power to reasonably interpret statutory ambiguities, even when Congress explicitly delegates this power. That’s a rule of his invention; it is not supported by the Constitution.

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