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02/10/2017

McGinnis and McConnell on Gorsuch and Originalism
Michael Ramsey

At Liberty Law Blog, John O. McGinnis: Gorsuch Nomination: Potentially the Best News for Originalism since 1987.

Gorsuch is a fine nomination, a worthy successor to Justice Scalia in the three ways that count. First, he is an originalist. That matters, because the last two Republican appointees, Chief Justice John Roberts and Justice Samuel Alito, have not shown themselves to be either declared or relatively consistent originalists. And it is originalism that holds the most promise for maintaining a beneficent Constitution and a constrained judiciary.

Second, as I argued at the City Journal, Gorsuch is a superb writer. To be powerful and influential with the public, as Scalia was, a justice needs to convey his ideas clearly and pungently. Justice Clarence Thomas, for all his other fine qualities as justice, is not as good as Scalia was at this task.  Gorsuch is in the top 2 percent of all federal judges in this ability.

Third, to be influential with academics, justices must be at home in the world of legal scholarship and theory. Gorsuch has himself written an excellent university press book on assisted suicide. His opinions often engage with the latest law review articles as well as the latest case law on a subject. This academic breadth matters more than one might think.   Even if the Supreme Court makes correct decisions today, they will last only if our constutional [sic] culture becomes an originalist culture, as it was for the century before progressivism. Originalism has been ascending in academic respectability for the last two decades, in no small part thanks to Antonin Scalia. Another justice who takes the academic case for originalism seriously will provide fuel for continued ascent.

At Defining Ideas, Michael McConnell: Neil Gorsuch: An Eloquent Intellectual.

Judge Gorsuch is a longstanding proponent of the view that the Constitution must be interpreted according to its text as it was understood by those with authority to enact it. In his words: “Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.” (Cordova v. City of Albuquerque (2016)). That sometimes leads to conservative results, but not always. As one liberal law professor wrote: “He is way too conservative for my taste, but his decisions are largely principled and fair from his originalist’s view of constitutional interpretation. . . . That approach can result in decisions that don’t reliably fall into any one place on the liberal-to-conservative spectrum.”

If the Constitution, fairly interpreted, does not speak to an issue, Judge Gorsuch leaves it to the political process. As he wrote in tribute to his mentor Justice Byron White, we should have “confidence in the people’s elected representatives, rather than the unelected judiciary, to experiment and solve society’s problems, so long as the procedures used were fair and the opportunity to participate was open to all.”