Wednesday, April 12, 2017
by Richard Storrow
In the wake of the confirmation of Justice Neil Gorsuch, two experts have weighed in on the future of the United States Supreme Court. Both Adam Liptak and Lisa Marshall Manheim agree that we will see little difference in the work of the Supreme Court in the short term. After all, Gorsuch is a "one-for-one" "close match" for Justice Antonin Scalia.
Both Liptak and Manheim do predict notable changes in the long term, however. Manheim believes the "realignment of checks and balances" that accompanied Gorsuch's confirmation has strengthened the executive branch's power to appoint. With filibusters and the need for approval by sixty senators out of the way, presidents may feel emboldened to nominate ideologues that appeal to their political supporters. Such nominations, if successful, could polarize the court and upend the "ideological balance" that currently prevails. Yes, perhaps. But Manheim admits that this scenario may depend on whether the president's party has control of the Senate.
Liptak's contribution, noting that party affiliation has become a strong predictor of voting trends for the members of the Supreme Court, speculates on what would have happened had Judge Merrick Garland joined the supreme bench. Chief Justice Roberts would have been ideologically sidelined and Citizens United would have been scheduled for the chopping block. Oh, what might have been. Reminding us that the Court's liberal wing is aging, Liptak believes the arrival of Gorsuch portends a reinvigoration of the projects of the Roberts court: deregulation of campaign finance, rollbacks of voting rights, roll forwards of gun rights and an insistence on race blindness in everything from education to housing.
Neither author mentions that Gorsuch's claimed originalism remains inadequately categorized. As David Dorsen notes in The Washington Post, as a lower court judge, Gorsuch was constrained by Supreme Court precedent, and his writings on euthanasia are not those of an originalist but of a moral philosopher. Only in a 2016 law review article does Gorsuch embrace a vigorous originalism. But the article is the transcript of a speech, which, delivered in the wake of Justice Scalia's death, became mired in encomium. Given the context, the originalism it describes is a caricature without nuance. It fails to grapple with the practicalities or the wider ramifications of being a judge who adheres to a particular brand of originalism. It tells us little about what Gorsuch believes originalism is or how it should be used to address the issues of our day.
Contrary to Dorsen, I would submit that we probably do gain good insight into Gorsuch's brand of originalism from his concurrences and dissents while serving on the 10th Circuit Court of Appeals. It is a narrow originalism capturing Gorsuch's disdain for the administrative state. It focuses squarely on ideas about the separation of powers and how those lines have become blurred with the mushrooming of the fourth branch. But it is not an originalism that seeks to aggrandize power in the elected branches, as was Scalia's. Instead, Gorsuch views the separation of powers as essential to due process and equal protection. See, e.g., Gutierrez-Brizela v. Lynch (10th Cir. 2016). This could be good news for those who worry about what position he will take on questions of affirmative action, immigration and abortion, subjects about which he has not yet said enough.