A Jeffersonian for the Supreme Court

Neil Gorsuch’s record suggests a willingness to transform the law and to enforce constitutional limitations on the excesses of Congress and the president.

Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, is one of the most respected conservative legal intellectuals on the federal bench. Like Justice Antonin Scalia, he has the ability and the ambition to lead America’s constitutional debate by following a clear vision of textualism and originalism, based on the premise that judges should separate their political from their constitutional conclusions.

But unlike the Hamiltonian Justice Scalia, the more Jeffersonian Gorsuch seems more willing to return to constitutional first principles and to question the constitutional underpinnings of the post-New Deal administrative state. At the same time, he clerked for Justice Anthony Kennedy and seems more likely than any other nominee to persuade Kennedy to vote with the conservatives rather than the liberals as long as he remains on the Court. And his record suggests a willingness to transform the law and to enforce constitutional limitations on the excesses of Congress and the president. For all of these reasons, Gorsuch’s appointment gives conservatives reason to celebrate, and liberals reason to fear, that Trump couldn’t have made a more effective choice.

There’s no doubt, however, that the principled Gorsuch would be willing to rule against Trump or a Republican Congress if he felt they exceeded their constitutional bounds—if Trump issued executive orders that clashed with the text of federal immigration laws, for example, or if Congress passed laws banning abortions that don’t involve crossing state lines that exceeded its power to regulate interstate commerce. As Gorsuch said at the White House while accepting Trump’s nomination, “a judge who likes every outcome he reaches is very likely a bad judge.” And because of Gorsuch’s appealing and collegial personality and temperament, he could certainly join with the liberal and conservative justices on the Roberts Court to form a united front against clear and present threats to the First Amendment or to the constitutional order. At a time when progressives are rediscovering the virtues of Madisonian checks on populist excesses and federal power, Gorsuch may be precisely the kind of bipartisan Jeffersonian justice the country needs.

The best way to understand Gorsuch’s potential to transform the law and to enforce constitutional limitations on federal and state laws is to read his book, The Future of Assisted Suicide and Euthanasia, published in 2006. The fact that Gorsuch wrote it in the first place shows his intellectual ambition. After graduating from Columbia University and Harvard Law School, clerking on the U.S. Court of Appeals for the D.C. Circuit (where I got to know and admire him as a clerk the same year), and then going on to clerk for Justices Byron White and Anthony Kennedy, Gorsuch thrived for a decade at the Washington law firm of Kellogg Huber. He then left his high-paying partnership for Oxford University, which he attended on a Marshall Scholarship, and completed his doctorate with John Finnis, the great scholar of natural law.

Gorsuch’s doctoral thesis, which became the basis for his book, makes a deontological argument—one based on duties rather than consequences. It offers an extended objection to the consequentialist view of law offered by scholars ranging from the pragmatist Richard Posner to the libertarian Richard Epstein. His approach to the issue is instead “premised on the idea that all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”

In praising Gorsuch after his appointment was announced, Republican Senator Mike Lee, who as an attorney argued before Gorsuch, emphasized how carefully he reads the footnotes in briefs. And indeed, Gorsuch in his book takes Posner to task for misreading footnotes and misrepresenting data. He also criticizes Epstein for embracing a “libertarian theory [that] tends not merely toward legalizing assisted suicide for the terminally ill, but also toward legalization of assisted suicide, euthanasia, and consensual homicide for all competent adults, regardless of their physical condition or reasons for action.”

Gorsuch roots his conclusion in practical experience and natural law, as expressed in the Declaration of Independence:

Don’t we sometimes respect persons and things because of what they are, not because of what they can do for us? Indeed, our entire political system is premised on the notion and acceptance of such basic, fundamental rights (and wrongs), as reasoned from human experience. Our Declaration of Independence begins the substance of its work with the bold assertion that certain ‘truths’ about human nature are indeed ‘self-evident,’ that these self-evident truths include the impulse for life and the value of liberty, and all that follows in the Declaration, the whole purpose pose and ideal of government as envisioned by the founding document of our country, is to establish a government that is aimed at securing and protecting what our founders considered to be self-evident human rights and truths.

Unlike Clarence Thomas, who insisted in his confirmation hearings that his musings about natural law and the Declaration of Independence had no constitutional implications, Gorsuch stresses:

Perhaps the most profound indicium of the innate value of human life, however, lies in our respect for the idea of human equality. The Fourteenth Amendment to the U.S. Constitution guarantees equal protection of the laws to all persons; this guarantee is replicated in Article 14 of the European Convention and in the constitutions and declarations of rights of many other countries. This profound social and political commitment to human equality is grounded on, and an expression of, the belief that all persons innately have dignity and are worthy of respect without regard to their perceived value based on some instrumental scale of usefulness or merit. We treat people as worthy of equal respect because of their status as human beings and without regard to their looks, gender, race, creed, or any other incidental trait—because, in the words of the Declaration of Independence, we hold it as ‘self-evident’ that ‘all men (and women) are created equal’ and enjoy ‘certain unalienable Rights,’ and ‘that among these are Life.’

What are the constitutional implications of Gorsuch’s Jeffersonian view of natural law? He presents his “inviolability-of-life principle” as a modest suggestion “that current laws against assisted suicide and euthanasia largely should be retained,” calling it “the clearest, most consistent secular explanation and defense for our current regime that proscribes intentional killings but does not seek to enforce any broader rule interfering with patient autonomy and choice.” Gorsuch stresses that “my argument, based on secular moral theory, is consistent with the common law and long-standing medical ethics” and he emphasizes that “I do not seek to address publicly authorized forms of killing like capital punishment and war.”

Still, in the concluding chapter of his book, he suggests that he might go further in recognizing a constitutionally enforceable right to life than Justice Scalia, who, in the Gonzales v. Oregon case in 2006, dissented from the Court’s 6 to 3 decision that Attorney General John Ashcroft could not enforce federal drug laws to block Oregon’s assisted-suicide law, which allows doctors to prescribe life-ending drugs to terminally ill patients. Scalia’s dissent was based on the principle that judges should defer to the executive’s interpretation of federal statutes. This is known as Chevron deference, after a 1984 case called Chevron, which requires judicial deference to interpretations of laws by executive agencies unless the interpretations are unreasonable.

Gorsuch emphasizes, however, that “it remains to be seen whether [the Court might] … recognize a constitutional right that trumps at least some state legislation against assisted suicide.” And he suggests that he might be inclined to recognize such a right.

“Oregon’s decision to make a legal discrimination based on physical health (the terminally ill versus everyone else) seems a candidate for heightened review,” he argues, just like distinctions based on race or gender. “This especially so given that Oregon’s law expressly implicates a fundamental right—that is, the scope of the right to life.”

As a result, Gorsuch suggests that state laws legalizing assisted suicide not only may be preempted by federal law—they may also be unconstitutional. “What rational basis is there for treating the lives of those who are diagnosed as having less than six months to live any different from any number of other groups of persons—such as the patient suffering irremediable pain, the quadraplegic,” an infant with Down syndrome, or an “incompetent Alzheimer’s patient? Can we rationally single out just the ‘terminally ill’?,” Gorsuch asks. “Whatever the doctrinal rubric ultimately employed to review Oregon's discrimination between terminally ill and healthy persons, a nontrivial legal argument can be made that the law fails to pass muster.”

Although Gorsuch’s book does not address abortion, a holding that fetuses, at a certain point in their development, have a constitutionally protected right to life could lead to a scaling back or overturning of Roe v. Wade. As Ed Whelan, a former Scalia clerk and Justice Department lawyer, notes in responding to an email sent out last week by the late Phyllis Schlafly’s son Andy, urging pro-lifers to protests against Gorsuch’s nomination because he is not sufficiently pro-life, “I don’t know what Schlafly means by his claim that Gorsuch ‘has said nothing publicly pro-life.’ If declaring in writing that ‘human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong’ (page 157 of his book) doesn’t count, then what does?”

Ultimately, whether Gorsuch would be inclined, like Scalia, to overturn Roe depends on his conception of the weight of judicial precedent. Along with 12 of the top liberal and conservative appellate judges in the country, Gorsuch contributed to one of the leading treatises on the question, Law of Judicial Precedent, published last year. But Supreme Court justices on both sides of the aisle are notoriously free to ignore hornbook maxims.

One way of gauging Gorsuch’s views about precedent is to ask whether he is a champion of judicial engagement, like Justice Clarence Thomas, who will vote to overturn any law he thinks is inconsistent with the original understanding of the Constitution. (Scalia said that he, unlike Thomas, wouldn’t do that because “I’m not a nut.”) Or is Gorsuch a champion of bipartisan judicial restraint in the mode of Chief Justice John Roberts and Justice Oliver Wendell Holmes? (Roberts invoked Holmes in justifying his votes to uphold laws mandating health insurance and banning gay marriage).

Gorsuch’s speeches don’t answer the question definitively, but it’s possible to read them in a way that defends judicial engagement—that is a vigorous willingness to enforce constitutional limitations on the presidency, Congress, and the administrative state. For conservatives who argue that the Court needs another Thomas, not a Scalia, Gorsuch may be the answer to their prayers. In a 2016 speech on Scalia’s legacy, titled “Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia,” Gorsuch endorses “the great project of Justice Scalia’s career [which] was to remind us of the differences between judges and legislators.” But he emphasizes that judges should not hesitate to enforce constitutional limitations on legislative excesses, in the interest of protecting liberty. “It seems to me that the separation of legislative and judicial powers isn’t just a formality dictated by the Constitution,” he declared. “To the founders, the legislative and judicial powers were distinct by nature and their separation was among the most important liberty-protecting devices of the constitutional design, an independent right of the people essential to the preservation of all other rights later enumerated in the Constitution and its amendments.”

Gorsuch’s opinions support the view that he would enforce constitutional limitations on the regulatory state even more vigorously than Scalia. In Caring Hearts v. Burwell in 2015, Gorsuch held that a federal agency was wrong to apply new regulations to punish an individual for conduct allowed by the law in force at the time. “This case has taken us to a strange world where the government itself—the very ‘expert’ agency responsible for promulgating the ‘law’ no less—seems unable to keep pace with its own frenetic lawmaking,” Gorsuch wrote vividly. “A world Madison worried about long ago, a world in which the laws are ‘so voluminous they cannot be read’ and constitutional norms of due process, fair notice, and even the separation of powers seem very much at stake.” Gorsuch continued by criticizing the excessive delegation of legislative power to executive regulatory agencies, showing sympathy for a doctrine known as the non-delegation doctrine, which the Supreme Court has been reluctant to enforce since the New Deal era. “Executive agencies today are permitted not only to enforce legislation but to revise and reshape it through the exercise of so-called ‘delegated’ legislative authority,” Gorsuch wrote. “[A]ll this delegated legislative activity by the executive branch raises interesting questions about the separation of powers ... [including] troubling questions about due process and fair notice—questions like whether and how people can be fairly expected to keep pace with and conform their conduct to all this churning and changing ‘law.’”

While Scalia championed the idea that courts should defer to executive agencies under the Chevron doctrine, Gorsuch has called for the reconsideration of Chevron. In Gutierrez-Brizuela v. Lynch in 2016, Gorsuch wrote a separate concurrence to his own majority opinion discussing the growth of the regulatory state and arguing that Supreme Court cases like Chevron and Natl Cable Assn v. Brand X have “permit[ted] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that [is] difficult to square with the Constitution of the framers’ design.” In light of the founders’ vision of a system of separated powers, Gorsuch argued, the Supreme Court ought to reconsider its doctrines of deference:

There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.

As Eric Citron concludes in his analysis of Gorsuch’s record for SCOTUSblog, “Gorsuch definitely has a different take from Scalia on the administrative state—one that grants it less power, and so accords even more closely with the conservative conception of small government. Indeed, this is an area in which Gorsuch is plainly a thought leader, expressing judicial sentiments many conservatives with similar concerns have rarely voiced, and which even Scalia might have bristled at.” Gorsuch’s arguments are closer to the ones Justice Thomas offered in Michigan v. EPA, where Thomas insisted that the administrative state “wrests from the Courts the ultimate interpretative authority to ‘say what the law is,’ and hands it over to the Executive ... As in other areas of our jurisprudence concerning administrative agencies, we seem to be straying further and further from the Constitution without so much as pausing to ask why.”

It’s true, as the University of Texas law professor Stephen Vladeck told CNN, that if Gorsuch helped to persuade the Court to reconsider the Chevron doctrine, the scope of the regulatory state could change dramatically. “If he were to form part of a majority to scale back that principle, it would be a major sea change in the relationship between the executive branch and the courts, and one that would likely impose significant new constraints on the scope of federal regulatory authority on all topics—from immigration and criminal law enforcement to environmental protection, consumer product safety, and drug regulation,” Vladeck said. On the other hand, this is an age when progressives would like courts to closely scrutinize President Trump’s decisions to regulate, or not to regulate, in areas like immigration and the environment, to ensure they comply with congressional intent. In these cases, by hewing to the intent of laws passed by Congress decades ago, Gorsuch’s principled textualism might favor progressive rather than conservative results. And more broadly, Gorsuch seems committed not so much to dismantling the administrative state as to ensuring that the administrative state maintains lines of accountability that protect constitutional values, such as liberty, due process, and fair notice. The Jeffersonian Justice Louis Brandeis, who voted to strike down the most centralizing aspects of the New Deal, would expect no less.

There’s no question that Gorsuch believes that the core of the judicial function is for a judge to separate his political from his constitutional views. As he eloquently wrote in his tribute to Scalia:

Now as I judge I see too that donning a black robe means something—and not just that I can hide the coffee stains on my shirts. We wear robes—honest, unadorned, black polyester robes that we (yes) are expected to buy for ourselves at the local uniform supply store—as a reminder of what’s expected of us when we go about our business: what Burke called the “cold neutrality of an impartial judge.” Throughout  my decade on the bench, I have watched my colleagues strive day in and day out to do just as Socrates said we should—to hear courteously, answer wisely, consider soberly, and decide impartially. Men and women who do not thrust themselves into the limelight but who tend patiently and usually quite obscurely to the great promise of our legal system—the promise that all litigants, rich or poor, mighty or meek, will receive equal protection under the law and due process for their grievances. Judges who assiduously seek to avoid the temptation to secure results they prefer. And who do, in fact, regularly issue judgments with which they disagree as a matter of policy—all because they think that’s what the law fairly demands.

In a number of cases, moreover, Gorsuch has reached legal conclusions that diverge from his political views. In the Games-Perez case, he insisted that to be convicted of a felony in possession of a firearm, an individual had to know that he was a felon, not merely know that he possessed a gun. “The courts must carefully enforce criminal intent requirements when the government seeks to put a defendant behind bars,” Gorsuch insisted. And like Justice Scalia, Gorsuch has voted vigorously to enforce Fourth Amendment protections against unreasonable searches and seizures. In United States v. Carloss in 2016, for example, the Tenth Circuit held that police could ignore “No Trespassing” signs posted around a house and search its curtilage without a warrant. Gorsuch dissented, invoking the original understanding of the Fourth Amendment and the general warrants that sparked the American Revolution. “In the government’s telling, its agents enjoy a special and irrevocable right to invade a home’s curtilage for a knock and talk—what might be more accurately called a sort of permanent easement—whatever the homeowner may say or do about it,” Gorsuch wrote. “This line of reasoning seems to me difficult to reconcile with the Constitution of the founders’ design.”

Gorsuch has voted to enforce the Fourth Amendment in favor of the most unsympathetic defendants. He concurred in United States v. Krueger in 2015, concluding that officers violated the Fourth Amendment while searching a suspect’s home in Kansas for evidence of distribution of child pornography. A magistrate in Oklahoma, Gorsuch held, invoking the original understanding of the Fourth Amendment, didn’t have authority to issue a warrant for the search of a home in Kansas. And siding with the defendant in another child pornography case, United States v. Ackerman in 2016, Gorsuch held that the National Center for Missing and Exploited Children’s search of a suspect’s private e-mails implicated the Fourth Amendment, because the center was acting like a government agent when it conducted the search. Gorsuch’s willingness to side, twice, with suspected child pornographers is vivid evidence of his willingness to enforce the Fourth Amendment wherever it leads.

Scalia’s seat is the same one held by Robert Jackson, one of the greatest writers on the 20th century Court. As Gorsuch said Tuesday in accepting his nomination, “The towering judges that have served in this particular seat of the Supreme Court, including Antonin Scalia and Robert Jackson, are much in my mind at this moment.” Like Jackson, Scalia’s influence came from a combination of his literary gifts and his powerful judicial vision. Gorsuch has the opportunity and the ambition to leave a similar mark on the Court and the law.

As I drove to the train station early this morning, hours after Gorsuch’s nomination, I passed one of the most beautiful sites in Washington, the Jefferson Memorial glimmering in the moonlight. Gorsuch’s constitutional vision is more Jeffersonian and less deferential to federal power than that of his Hamiltonian predecessors, Jackson and Scalia. If he succeeds Scalia and Jackson on the Court, he will likely be even more willing to enforce constitutional limitations on any excesses committed by the president who appointed him.