We’re pleased to publish this guest feature by Matt Mellema and Ian Speir.
President Trump’s tapping of Judge Neil Gorsuch for the Supreme Court has won near-universal praise from the Religious Right. Gorsuch has been lauded as an articulate originalist, a committed textualist, and a judge “in the model of the late Antonin Scalia.” The evangelicals who supported Trump because of the Supreme Court may have sold their birthright for a bowl of stew. But at least it was a good stew.
Gorsuch has said all the right things about originalism and the role of the judiciary. He’s also a brilliant jurist, and will be an equally brilliant Supreme Court justice. But his selection isn’t a simple victory for evangelicals to win all their cases. Instead, it’s an opportunity to see if they really mean what they’ve been saying about judges.
As Federalist Society members at East Coast law schools, much of our time was spent arguing about originalism. This included responding to originalism’s critics—which, on most law school campuses, are everywhere. There are plenty of critiques of originalism. One of the most forceful comes from Yale Law School’s Robert Post and Reva Siegel, who argue that originalism is, in essence, a sham, a veneer of objectivity to cover up our conservative political practices.
Fed Soc people respond with originalists like Akhil Amar and Jack Balkin, also Yale law profs. Those unfamiliar with Amar should read his books, especially America’s Constitution and The Bill of Rights. They’re tightly argued and (unlike most academic books) engaging and pleasant to read. More importantly, Amar (like Balkin) is an originalist who’s also a liberal. “See?” we would insist. “Originalism isn’t just some conservative charade.”
A better test for “real” originalism, though, isn’t just finding a liberal originalist, but finding judges and scholars who use originalism to come to conclusions they don’t like, or conclusions that are, at least, unexpected. For Amar, it means arguing that the Bill of Rights was less about protecting individual rights and more about protecting popular sovereignty against an overbearing central government. For Scalia, it meant siding with criminal defendants to safeguard a robust right of cross-examination at trial.
In Gorsuch, originalists have reason to hope. In his White House remarks accepting the President’s nomination, Gorsuch observed that “[a] judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.” This attitude is evident in his opinions, too. In a separate concurrence in a Tenth Circuit case early last year about the “dormant Commerce Clause” – an obscure and strange constitutional doctrine – Gorsuch wrote, “[I]n our legal order judges distinguish themselves from politicians by the oath they take to apply the law as it is, not to reshape the law as they wish it to be.” Though he was talking about the importance of following precedent, this kind of language is music in the ears of those who care about judicial restraint.
Then there are his opinions in Guitierrez-Brizeula v. Lynch – opinions plural because Gorsuch authored the main opinion for the court and then wrote separately to criticize the Supreme Court’s Chevron doctrine. Gorsuch observed that Chevron, which requires courts to defer to federal agencies’ legal interpretations even when they disagree with them, “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power” in a way that was “difficult to square with the Constitution of the framers’ design.” And here was Gorsuch’s springboard to do a little originalism. He lauded the founders’ wisdom in setting up a government of separated powers, “a vital guard against governmental encroachment on the people’s liberties,” and he capped off his brief discussion with quotes from Madison and Hamilton in The Federalist Papers. It might be American History-Lite, but it’s classic Scalia.
Gorsuch, then, is exactly the sort of judge originalists want. He’s also the sort of judge the Religious Right wants. At least, he’s the kind of judge the Religious Right says they want. After their treatment of Judge William Pryor, it’s unclear what they’re actually looking for.
Pryor, like Gorsuch, is a federal appeals court judge, and was an early front-runner for nomination to the Supreme Court. But he eventually fell out of favor among the Religious Right. Those of you who know anything about Judge Pryor know how insane that past sentence sounds.
Judge Pryor is as staunch an originalist as Gorsuch. He may also be the most openly conservative judge on the court of appeals. During his confirmation hearing for the appeals court, he said that Roe v. Wade was the “worst abomination in the history of constitutional law.” He is also open about the fact that he once changed his family’s travel plans so a trip to Disney World didn’t overlap with Disney’s annual “Gay Day.”
It’s hard to emphasize this enough: Judges don’t say things like that. Especially when they have a realistic chance at the Supreme Court.
In contrast, Gorsuch has no public opinions on controversial topics. Journalists have yet to find a statement on abortion, and they’re not going to. An article featuring Gorsuch’s close friends characterized his views on LGBT rights as “not easy to pigeonhole.” All of this is deliberate. Judges with Supreme Court ambitions do not say anything that could bite them in a confirmation hearing.
Pryor, however, was willing to say these things. But the Religious Right still turned against him.The reasons why are telling. When Pryor was the Attorney General of Alabama, he brought disciplinary proceedings against Roy Moore, a justice on the Alabama Supreme Court, for openly defying a federal court order. This should be uncontroversial: Pryor was merely doing his legal duty. But the federal order required Moore to remove a Ten Commandments display from his courthouse.
Pryor’s actions should have been a victory for textualism and principle: He followed the law even though he disagreed with it. To the Religious Right, though, it was anathema. They were furious that Pryor would punish a judge who was supposedly standing up for America’s Christian heritage.
Conservatives also criticized a couple decisions he joined while on the court of appeals. The most significant was Glenn v. Brumby, a case from 2011. A biological male was fired from his job after he started presenting as a woman. The issue before the court was “whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause.” Citing the “near-total uniformity” of other courts of appeal, the court ruled that it did.
This Glenn decision has been criticized on originalist grounds, and these critics may have a point. The court followed the example of other federal circuits, even though that seemed to conflict with the original text. By joining Glenn, Pryor may have gotten his originalism wrong. This led some on the Religious Right to speculate that Pryor, the man who rearranged his vacation to avoid Disney’s “Gay Day,” was secretly in the tank for the LGBT agenda. It also caused the conservative Judicial Action Group to write a memo concluding that Pryor “has failed to interpret the Constitution as the framers intended.”
If one wrong decision is enough to cost judges their originalist credentials, there would be no judges left. Most every originalist judge applies the principles wrongly at some point. That includes Scalia.
In District of Columbia v. Heller, Justice Scalia found, for the first time in American history, that the Second Amendment contained a private right to bear firearms. Scalia claimed this new right on originalist principles, getting into a fierce duel with Justice Stevens’ dissent along the way.
The decision was hailed by many conservatives. Some of its fiercest critics, however, were other conservative judges. Judge Harvie Wilkinson argued that the opinion betrayed every principle of judicial restraint. The originalist argument was, at best, unclear between Scalia and Stevens. This indeterminacy should have cautioned against finding a new substantive right. Wilkinson thus concluded that “Whereas once legal conservatism demanded that judges justify decisions by reference to a number of restraining principles, Heller requires that they only make originalist arguments supporting their preferred view.” In a final irony, Wilkinson compared the audacity of Heller’s judicial activism to…Roe v. Wade.
Scalia’s mistakes didn’t cause conservatives to question his judicial disposition, or accuse him of having “failed to interpret the Constitution as the framers intended.” It’s easy to see why—he got the “right” answer.
If Pryor had used a faulty method to get a conservative answer, would he have drawn the ire of conservative think tanks? Doubtful. Tim Wildmon of the American Family Association expressed the opinion of many on the Religious Right: “Pryor may be 90 percent good on his decisions, but that is not good enough. We need someone who will be just like Scalia, 100 percent, in terms of their judicial philosophy.”
It’s hard to read this as promoting anything other than consequentialism. They want a judge who will rule their way, period. A good judge is one who bends the law to get the conservative answer 100 percent of the time.
Of course, nobody is saying that outright. Judging from Facebook and Twitter feeds, most on the Religious Right seem to assume that originalism naturally leads to conservative answers. That’s often true. But as Scalia’s Confrontation Clause jurisprudence shows, sometimes the original meaning gives liberal results. If Gorsuch is true to his principles, he’ll eventually get liberal results as well.
Gorsuch’s tenure on the Supreme Court will be a chance for the Religious Right to practice what they preach. Senator Ben Sasse addressed a similar point during a speech to the Federalist Society. He pointed out that during the Obama administration, Republicans loved talking about small government and limiting the power of the executive. Now that Republicans have all the power, they can prove whether they actually meant what they said, or if it was just rhetoric.
The Religious Right is in the same situation. For years, we’ve espoused the principles of originalism and judicial restraint. Was that because we actually believed it, or because we thought it was the best way to get conservative answers?
Gorsuch is our chance to find out.
Matt Mellema is a lawyer specializing in religious institutions. He’s also a writer who explores evangelicalism and quitting cynicism at mattmellema.com. Follow him on Twitter at @Matt_Mellema. Ian Speir is also a lawyer specializing in religious institutions. He serves as chancellor to an Anglican diocese and is a contributor to Providence Magazine, where he writes about religious persecution and foreign policy. Follow his writing at ianspeir.com and on Twitter @ianspeir. The views expressed here are the authors’ own.
The authors downplay the issue of federal supremacy in conservative thought in how Pryor is thought of post the judge Moore incident. What to do when federal and state laws conflict is a non trivial question.
Given the US is in such a bad way politically surely the Constitution should shoulder some of the blame?
The treatment of the US Constitution – an excellent example of a document of committee and compromise – as a kind of Scripture is tiresome. Judges do need to adhere to the law as their guiding principle – that is their job. But building ideologies/tribes on concepts like Originalism make no sense.
As I noted on another thread, whether evangelicals want an originalist judge all depends on what one means by originalism.
Those of us lawyers generally take originalism to mean that judges should defer to the original public meaning of statutes and Constitutional provisions. I do not take it to mean that future courts are necessarily bound by how earlier courts elected to apply those principles in particular social situations. That’s because our understanding of social situations can change with time and experience, and we may come to see injustice in places to which we were previously blind to it.
But that’s not how evangelicals generally refer to originalism. Rather, by my observation, most evangelicals believe that future courts should be bound by the particular social understandings of past courts. It’s in this sense that originalism becomes something of a sham, as it effectively becomes little more than a tool for preserving the cultural hegemony of white, middle-class, conservative Christians.
This distinction is best illustrated by the Obergefell decision. I would agree that Justice Kennedy’s majority opinion is a hot mess of judicial activism, as he reads his own political predilections into the Due Process Clause. But that doesn’t mean that an originalist would necessarily accept the legitimacy of same-sex marriage bans. To the contrary, there is a reasonable originalist argument to be made that such bans violate the Equal Protection Clause. This point is made well in Judge Posner’s opinion in Baskin v. Bogan.
In that sense, I don’t see Justice Scalia’s tendency to rule against sexual minorities as saying anything about his originalism. I suspect that his decisions on those cases had far more to do with his lack of social exposure to gay and lesbian people. A younger originalist with a broader range of social experiences could just as easily have ruled in a different way, although on narrower grounds than those set forth in Justice Kennedy’s majority opinion.
Judge Gorsuch may share Justice Scalia’s love of originalism. I doubt that he shares his limited social worldview. If evangelicals think that Judge Gorsuch is going to lead the charge in chasing the gays and lesbians back into the closet, they’re probably going to be sorely mistaken.