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U.S. Constitution
See other U.S. Constitution Articles

Title: 'Everything conservatives hoped for and liberals feared': Neil Gorsuch makes his mark at the Supreme Court
Source: some Amazon rag called WaPo
URL Source: https://beta.washingtonpost.com/pol ... 9-8c1c-7c8ee785b855_story.html
Published: Sep 7, 2019
Author: Robert Barnes & Seung Min Kim
Post Date: 2019-09-07 09:01:32 by Tooconservative
Keywords: None
Views: 93
Comments: 7

Some justices ascend to the Supreme Court quietly, deferring to their elders and biding time before venturing out too far to offer their own views of the law.

Justice Neil M. Gorsuch, on the other hand, appears to have been shot from a cannon.

At his inaugural oral argument in April 2017, President Trump’s first choice for the Supreme Court asked 22 questions. In the term just completed, Gorsuch wrote more dissents than any other justice and typed out a whopping 337 pages of opinions. Again, more than anyone else.

Along the way, he has established himself as one of the court’s most conservative justices and a reliable vote for Trump initiatives that have reached the Supreme Court — the travel ban on those from mostly-Muslim countries, adding a citizenship question to the census form and allowing a ban on transgender service in the military to go into effect. He has shown a willingness to overturn precedent and an impatience with more reticent colleagues.

More than anything, he has displayed a supreme confidence that his originalist approach to the law is the most disciplined and principled way to go about his job as a justice.

“I’m all in, and I wanted to explain that,” Gorsuch said in a recent interview in his chambers. He was referring to “A Republic, If You Can Keep It,” a book he has written that goes on sale Tuesday. The title is from Benjamin Franklin’s reported comment when asked what kind of government the Founding Fathers would propose.

It is a collection of essays, speeches, past opinions and ruminations on civics, civility and the art of judging.

“I decided I wanted to say something about the Constitution, the separation of powers and the judge’s role in it,” Gorsuch said in the interview. At his confirmation in 2017, he said, “I was surprised by just some basic misunderstandings about the separation of powers.”

(In the interview, which happened to fall on his 52nd birthday, Gorsuch was unwilling to discuss the way the Senate goes about evaluating Supreme Court nominees. “You’re not going to make me relive the confirmation process are you?” he said in response to a question. “On my birthday?”)

Those who follow the court, on the left and the right, do not need a book to evaluate how Gorsuch has filled his role as the replacement for Justice Antonin Scalia, who died in 2016.

“He’s everything conservatives hoped for and liberals feared,” said Erwin Chemerinsky, the liberal dean of the law school at the University of California at Berkeley. He recently wrote a detailed evaluation of Gorsuch’s jurisprudence for ABA Journal.

Gregory Garre, who was solicitor general under President George W. Bush, said that Gorsuch is much like a concentrated version of Scalia, right down to his “maverick” tendencies to join the court’s liberals on some criminal justice issues.

“In a 2016 tribute to Justice Scalia, then-Judge Gorsuch described Justice Scalia as ‘docile in private life but a ferocious fighter when at work,’ ” Garre said. “Much the same could be said about Justice Gorsuch.”

One difference, according to Garre: “Arguably, he’s been more open to rethinking long-standing constitutional doctrine. . . . In this regard, he’s closer to Justice [Clarence] Thomas, who, even when Justice Scalia was on the court, often found himself writing alone on such matters.”

Respecting the court’s precedents — “stare decisis,” it is called — is a pledge that senators of both parties try to extract from Supreme Court nominees. Republicans want to preserve rulings respecting the Second Amendment; Democrats worry about eroding the right to abortion or the protection of same-sex marriage.

According to Adam Feldman, who analyzes the court for his website Empirical SCOTUS, Gorsuch has voted to overturn or suggested revisiting 11 of the court’s precedents in his two terms on the court.

Gorsuch, in the interview, denied that made him much different from any other justice.

“I think we’d all agree that precedent is very important,” Gorsuch said. “But it isn’t inexorable.”

As he writes in the book, Gorsuch said a justice must look at how a decision comports with the “original meaning” of the Constitution, how well reasoned the decision was at the time, how long it has been relied upon, how many other justices have questioned it.

“Goodness gracious, this court is as modest and as conservative as any in our history” about overturning precedent, Gorsuch said.

But if a litigant requests the court consider overturning a precedent, “I have to listen,” he said. “And once in a while I’m going to be persuaded. It’s not going to be that often. But it’s going to happen once in a while.”

Gorsuch voted with fellow conservatives to overturn a 40-year-old precedent involving the way public employee unions can collect collective-bargaining fees. And he advocated, along with Justice Ruth Bader Ginsburg, uprooting a precedent that allows local and federal prosecution for the same offense.

In a case last term that allowed a 40-foot cross to stand on public land as a memorial to World War I veterans, Gorsuch and Thomas went further than the majority to advocate finally ditching the test the court has set for deciding when a public display constitutes government endorsement of religion. Along with it, he said, should go the ability of “offended observers” to challenge such displays in court.

There are few references to current controversies in the book, and in the interview Gorsuch was adamant about not commenting on cases that could come before the court or opining about the man who nominated him.

For instance, in the book and in the interview, Gorsuch lavishly praised federal judges who “believe the Constitution is the greatest charter of human liberty that history’s ever known. And they believe in this country, they believe it’s more important than their own financial feathering of their nests.”

But asked about Trump’s frequent charge of bias against judges who have ruled against him or his policies, Gorsuch balked. “They can do their thing in the political arena. I’m a judge. And I’m going to stick to my lane,” the justice said. “You asked about what I think of judges in this country. I already talked about that, all right? Insert that answer here.”

Far from the candid coming-of-age memoirs of Thomas and Justice Sonia Sotomayor, Gorsuch’s book has chapters such as “Our Constitution and Its Separated Powers” and “The Judge’s Tools.” It is in the latter that he defends his view of originalism — “the Constitution should be read in our time the same way it was read when adopted” — and the textualist view of statutory interpretation.

Such a practice eschews trying to divine the legislature’s intent in passing a law and “tasks judges with discerning (only) what an ordinary English speaker familiar with the law’s usages would have understood the statutory text to mean at the time of its enactment.”

Such pronouncements fit in a book trying to explain how a judge works. But when Gorsuch first joined the court, they seemed to grate on his more experienced colleagues when he extolled them at oral argument. More than one issued a rebuke.

But the court has a way of coming together. “This is a group of people who respect, admire, cherish one another, I think, on a daily basis,” Gorsuch said in the interview. “It’s a very special little place.”

Sotomayor, Gorsuch’s liberal seatmate when the court hears oral arguments, has described him as a “lovely” person with whom she has decided to agreeably disagree. Ginsburg, one of those who seemed put off early on by the new justice, now tells audiences that she assigned two majority opinions to Gorsuch in the past term when he sided with the court’s liberals.

Ginsburg, famous for her octogenarian workouts, also says Gorsuch is probably the court’s fittest justice: He often makes an hour-and-a-quarter commute to work — each way — on his bicycle.

Despite their lifetime appointments, justices share a sense of fleeting fame. That is probably how it should be, Gorsuch said. But his worry is that Americans do not understand the structure of government and its institutions.

“Only about a third of Americans can identify the three branches,” Gorsuch said. “Another third can only name one branch of government. Ten percent thinks Judy Sheindlin serves on the United States Supreme Court. Judge Judy!”

He added, “I’ve got great respect for her, but she is not one of my colleagues.”


Poster Comment:

I like all the liberal tears being shed here. Gorsuch really has made his mark. Kavanaugh has been kind of lousy and sides with Earl Warren John Roberts way too much to have anything nice to say about his brief tenure. Kavanagh is one of those justices that talk good and are aggressive until they actually sit on the Court and then a few years later everyone wonders why such a mediocre turd was ever put on the Court.

Gorsuch is a winner, a lawyer's lawyer, the kind of justice that can actually move the Court, dislodge it from its stuffy orthodoxies. (1 image)

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#1. To: Tooconservative (#0) (Edited)

Sounds great. More, please. Can't wait for the old bridge troll to die and go to Hell, to be replaced by Amy Coney Barrett.

Hank Rearden  posted on  2019-09-07   13:16:26 ET  Reply   Trace   Private Reply  


#2. To: Hank Rearden (#1)

Sounds great. More, please.

If Trump gets even one more pick, say a jurist between Gorsuch and Kavanaugh in temperament, it would transform the courts for a generation.

It's one of the reasons the libs and libmedia hate and fear him so much. Look at how they've used the courts already to transform American life without having to actually pass laws through Congress.

The courts have needed to be reined in and told to do their jobs for a long long time in this country. The courts are playing a greatly outsized role in American life, often more impactful overall than the actions of Congress. That is the essence of what judicial activism is and how it suborns democracy and politics to elitist decision making. It relegates Congress to a mere role in handling budgets and dividing the pork and all the real decisions happen at the Court instead. It fundamentally twists the power balance away from Congress and on to the Court itself, representing the views of 5 of 9 unelected tenured judges over the course of decades. And that is contrary to any meaningful exercise of democracy. And it is key to the victories of the Left over the last 40 years since the Warren Court. The Left has been playing the long game. Give McConnell credit for showing Trump that his chance for a lasting legacy is through packing the federal courts with his appointees, filling a backlog of a hundred positions or more in addition to the regular retirement of federal judges, mostly Boomer judges, that is ongoing.

Tooconservative  posted on  2019-09-07   14:47:38 ET  Reply   Trace   Private Reply  


#3. To: Tooconservative (#2)

There are two, maybe three more, ready to croak in the next five years. This next election may decide the course and fate of our Republic.

Hank Rearden  posted on  2019-09-09   10:27:48 ET  Reply   Trace   Private Reply  


#4. To: Tooconservative (#2)

The courts have needed to be reined in and told to do their jobs for a long long time in this country. The courts are playing a greatly outsized role in American life, often more impactful overall than the actions of Congress. That is the essence of what judicial activism is and how it suborns democracy and politics to elitist decision making. It relegates Congress to a mere role in handling budgets and dividing the pork and all the real decisions happen at the Court instead. It fundamentally twists the power balance away from Congress and on to the Court itself, representing the views of 5 of 9 unelected tenured judges over the course of decades. And that is contrary to any meaningful exercise of democracy. And it is key to the victories of the Left over the last 40 years since the Warren Court. The Left has been playing the long game. Give McConnell credit for showing Trump that his chance for a lasting legacy is through packing the federal courts with his appointees, filling a backlog of a hundred positions or more in addition to the regular retirement of federal judges, mostly Boomer judges, that is ongoing.

Generally true. But there are some things, like enforced racial segregation, are just so awful, and so politically entrenched, that there is no way to remove them without the judicial gavel.

The line of law that lead to Hardwick is another example. The law never belonged in private bedrooms, the people who think it does - the religious fanatics - will never, ever relent. The Supreme Court agreed with them, but eventually that all should have been, and was, knocked over by a judicial sledgehammer gavel to the skull.

Of course, that then went too far, to the judicial imposition of gay marriage as a constitutional right. But then, all government overshoots, and it is still better that there is no segregation and no criminal prosecution for private bedroom matters anymore, than the conditions that previously existed.

When people are stubborn and bigoted, you do what you have to to shove them out of the way. That's always going to do damage. Can't be helped.

Vicomte13  posted on  2019-09-09   15:02:21 ET  Reply   Trace   Private Reply  


#5. To: Vicomte13 (#4) (Edited)

The law never belonged in private bedrooms, the people who think it does - the religious fanatics - will never, ever relent.

I've never met such a fanatic. They all seem to realize when you forbid sodomy to homos, you also forbid it to married couples. Which was the case around the country with oral and anal sex even with married couples even if it was rarely prosecuted.

If there are such fanatics nowadays, I suspect they're Opus Dei types or some variety of Roman Catholic. You won't find them among the Prots or secular types.

It's a serious mistake. It opens the door for polygamy.

These things are not in the interests of the country in any way.

Tooconservative  posted on  2019-09-09   17:14:36 ET  Reply   Trace   Private Reply  


#6. To: Tooconservative (#5)

Rarely prosecuted is not good enough. Laws against private sexual behavior between consenting adults do not have the right to exist. When they do, somebody group of busybodies are being repressive because they can be. If they won't refrain (and they won't), then unfortunately the system itself has to be damaged, perhaps permanently, to crush that out.

Slavery is perhaps the most glaring example of something that is so bad that it is not acceptable, to me, to wait until the political will existed to abolish it "the constitutional way". Getting rid of slavery is more important than preserving the US Constitution, and it was better to do it swiftly, with catastrophic and deadly war, then to let it linger in peace and "peacefully" destroy the lives of millions of slaves to let the white masters get around to it. Better to slaughter a million whites and burn down their country and suspend its Constitution RIGHT NOW than to let twenty million slaves endure slavery for another twenty years.

I don't think that restriction, but not really being able to enforce, laws against various forms of private sodomy is worth killing people and destroying the constitutional order, but slavery? Yeah, ending that, immediately, is more important than preserving the country. Fortunately we were able to do all three: end slavery, preserve the country and preserve the Constitution (stretched and torn a bit, to be sure). But if it came to a choice, the country and the Constitution had to go, if they really were going to be Pharaoh in the face of Moses and his staff.

I'm more Michael, or Lucifer...or maybe both...than Lincoln.

Vicomte13  posted on  2019-09-09   17:32:58 ET  Reply   Trace   Private Reply  


#7. To: Vicomte13 (#6) (Edited)

Laws against private sexual behavior between consenting adults do not have the right to exist.

Define "consenting adults" for all 50 states. I'll wait.

I'm more Michael, or Lucifer...or maybe both...than Lincoln.

Surely you don't subscribe to that idiocy about Lucifer=Satan. There is, after all, just one reference to Lucifer in the bible and all other references to the devil refer to him as "the devil" or "Satan".

Lucifer was a mocking name in Isaiah to refer to the fall of the hated kings of Babylon who enslaved Israel. Babylon was the lone military superpower of that entire era.

The ignorant idea that Lucifer was another name for the devil was, as usual, a bunch of Roman Catholic nonsense that got promulgated for centuries, like the now-repudiated doctrine of Limbo or the phony Saint Christopher (I still regret not picking up my own Saint Christopher statue for the dashboard or back window of my vehicle just for some Prot sarcastic humor). I think Rome repudiated Lucifer=Satan officially about 300 years ago but it persists in Prot America because they were infected with Rome's mistaken idea about Lucifer and just kept going with it.

And, yes, if someone says something about Lucifer in church, I have gone after it full bore so that the young people are not exposed to this silly and unbiblical myth about Lucifer.

Tooconservative  posted on  2019-09-09   18:16:09 ET  Reply   Trace   Private Reply  


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