Federal Courts and Nominations

Is the Scalia theory that Judge Gorsuch embraces a lofty constitutional doctrine or just an excuse to be conservative?

By David Savage

When Judge Neil Gorsuch, President Trump’s Supreme Court nominee, goes before the Senate next week, it will be a triumphant moment for “originalism,” the once-obscure theory that the Constitution should be interpreted according to the meaning of words and phrases as they were understood in the times they were written.

The late Justice Antonin Scalia was the foremost champion of this approach. Often frustrated inside the court, he traveled the country, scoffing at liberals who believed in a “living” Constitution that changes with the times.

Not since the failed 1987 nomination of Robert Bork has a prospective high court justice so embraced originalism as has Gorsuch, an appellate judge on the Denver-based 10th Circuit. Last year, he said courts must “apply the law as it is, focusing backward, not forward, and looking to the 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 — not to decide cases based on their own moral convictions or policy consequences they believe might serve society best.”

Gorsuch’s public endorsement of originalism helped him win the coveted nomination to succeed Scalia, and it is likely to play a key role in the debate over his confirmation.

Advocates of originalism see it as a way to limit the power of judges lest they be tempted to rewrite and revise the Constitution as they see fit. “The theory of originalism treats a constitution like a statute and gives it the meaning that its words were understood to bear at the time they were promulgated,” Scalia once said.

He saw originalism as a way to protect democracy, ensuring voters and elected lawmakers, not courts, decide controversies like abortion, same-sex marriage and the death penalty.

Critics dismiss it as little more than a slogan that wraps conservative goals into a lofty constitutional doctrine.

At Gorsuch’s days-long Senate Judiciary Committee hearing, which begins Monday, senators are likely to press him to discuss his views on abortion, gay rights, gun control and campaign funding laws. He is not likely to reveal much. High court nominees usually say they cannot discuss issues that may come before the court — which of course is why senators ask.

But they may have more success pressing Gorsuch about his views on originalism, which in recent years has become proxy of sorts in the Supreme Court’s conservative-liberal divide.

Leonard Leo, a Federalist Society vice president who served as a Trump adviser, said Gorsuch’s commitment to originalism was a key factor in his selection.

At the same time, progressive activists, gay rights lawyers and prominent liberal professors have cited Gorsuch’s belief in Scalia’s theory as a reason to firmly oppose his confirmation.

Eric J. Segall, a law professor at Georgia State University, describes originalism as a “sham” and a “charade” because the court’s conservatives regularly adopt a conveniently conservative view of the history.

“It is a political label to define a movement, not a real method of constitutional interpretation,” he said.

Others say looking at issues through an 18th century or 19th century lens almost always bodes poorly for modern-day struggles over things like affirmative action or women’s rights.

Liberal jurists, led by Justice Ruth Bader Ginsburg, have viewed the Constitution as more of a evolving document that can be adapted to reflect a changing nation. Ginsburg, like the late Justice Thurgood Marshall, pointed out when the Constitution was adopted in 1787, most of America’s people — women, African Americans and Native Americans — could not vote.

It’s a mistake, critics of originalism say, to apply narrow, fixed definitions to the Constitution’s broad protections for liberty and equality.

“An originalist asks if the original understanding of the equal protection clause was to mandate same-sex marriage. Obviously the answer is no,” said UCLA law professor Adam Winkler. “For many Americans, that is not where the analysis should end. They have to recognize we can’t fulfill the promise of equal protection without equal rights for LGBTs. We should look to the basic principles behind a constitutional provision and read those principles broadly to meet a changing society.”

It’s a significant debate because the high court’s most important decisions often turn on how to interpret phrases such as “freedom of speech,” “establishment of religion” or “cruel and unusual punishments,” which appear in Bill of Rights of 1791.

Perhaps the most disputed clause, however, is in the 14th Amendment of 1868, which says no state may “deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

The Supreme Court cited the 14th Amendment as the basis for rights to abortion and same-sex marriage, rulings Scalia vehemently opposed on the grounds they did not reflect the original meaning.

But that charge can cut both ways. Scalia joined the 5-4 ruling in the 2010 Citizens United case that struck down federal campaign-finance restrictions and held that corporations had a free-speech right to spend unlimited sums on politics. Critics note this pro-corporate decision hardly reflected the original meaning of the 1st Amendment.

Some progressives support originalism, saying it does not necessarily lead to conservative results.

“When you look at the full sweep of the Constitution, it is a progressive document concerned with voting rights, equality and democracy,” said David H. Gans, lawyer for Constitutional Accountability Center, a self-described progressive group. He faults conservatives for ignoring the history of the Reconstruction era.

One key point of dispute is the 14th Amendment’s promise of “equal protection of the laws.” The Reconstruction Congress, which wrote the amendment, funded public programs to help newly freed slaves, and some scholars of that era insist that “black equality” was the overriding aim of the amendment.

However, Scalia and the court’s conservatives have relied on the “equal protection” clause to strike down programs designed to help African Americans, such as affirmative action. They say the clause should be interpreted to forbid the government from considering a person’s race, and therefore affirmative action preferences are illegal, regardless of their intentions.

A similar dispute rages over voting rights. The 15th Amendment, adopted in 1870, guaranteed that the right to vote “shall not be denied or abridged” on the account of race, and that “Congress shall have the power to enforce” this promise.

Yet in 2013, the court’s conservatives struck down a key part of the Voting Rights Act — intended to protect the rights of black voters in the South — because, according to the 5-4 opinion, it conflicted with the principle that the states “enjoy equal sovereignty.” That principle is not mentioned in the Constitution.

In practice, the concept of originalism has had surprisingly little effect on major decisions of the Supreme Court.

Scalia and Justice Clarence Thomas have been seen as the court’s only true originalists, and they rarely had the opportunity to apply that theory in a major ruling, though they frequently raised it in dissents.

All the justices at times make references in their opinions to the Constitution’s text and history, but frequently they do not agree on the interpretation.

This was illustrated when both sides invoked the original history of the 2nd Amendment in a 2008 case over gun rights.

The 2nd Amendment states, “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Speaking for a 5-4 majority in D.C. vs. Heller, Scalia cited history from England and the Colonial era to conclude the amendment protected a personal right to be armed for self-defense, setting aside nearly a century of precedents that found no such individual right.

In the dissent, Justice John Paul Stevens focused more narrowly on the adoption of the 2nd Amendment in 1791 and concluded its aim was to protect a state’s right to “maintain a well-regulated militia.”

Any discussion of originalism often turns into a dispute over Roe vs. Wade, the 1973 ruling that legalized abortion. Scalia and Thomas said the decision was wrong and should be overturned because neither the words nor history of the 14th Amendment would warrant striking down state laws that banned abortion.

Knowing that Gorsuch will avoid speaking directly on the topic, Senate Democrats are likely to press him to discuss his views generally on Supreme Court precedents. They will want to know whether an avowed “originalist” would be inclined to uphold or overturn long-standing decisions that were not based on the original history.

Even if they do not say the words, they will be asking whether Gorsuch would vote to overturn Roe vs. Wade.

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