« Seth Barrett Tillman Receives Award from the North Carolina Society of Historians
Michael Ramsey
| Main | Even More from Gregory Ablavsky on Rob Natelson on the Indian Commerce Clause
Michael Ramsey »

11/09/2022

Justice Gorsuch Calls for More Overrulings on Originalist Grounds
Michael Ramsey

In two recent dissents from denial of certiorari, Justice Gorsuch called on the Court to overrule prior decisions.  In Khorrami v. Arizona he argued for overturning Williams v. Florida, 399 U. S. 78 (1970) (holding that the Sixth Amendment allows a jury of fewer than 12 members.  From the opinion: 

The State of Arizona convicted Ramin Khorrami of serious crimes before an 8-member jury. On appeal, Mr. Khorrami sought a new trial, arguing that the Sixth and Fourteenth Amendments of the U. S. Constitution guarantee individuals like him a trial before 12 members of the community. The Arizona Supreme Court rejected the appeal, explaining that it considered itself bound by Williams v. Florida, 399 U. S. 78 (1970). There, for the first time and in defiance of centuries of precedent, this Court held that a 12-member panel "is not a necessary ingredient" of the Sixth Amendment right to trial by jury. In his petition for certiorari, Mr. Khorrami asks us to reconsider Williams. Regrettably, the Court today declines to take up that task. Williams was wrong the day it was decided, it remains wrong today, and it impairs both the integrity of the American criminal justice system and the liberties of those who come before our Nation's courts….

For almost all of this Nation's history and centuries before that, the right to trial by jury  for serious criminal offenses meant the right to a trial before 12 members of the community. In 1970, this Court abandoned that ancient promise and enshrined in its place bad social science parading as law. That mistake continues to undermine the integrity of the Nation's judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable. Today's case presented us with an opportunity to correct the error and admit what we know the law is and has always been. Respectfully, we should have done just that.

And of greater significance, were he to get the votes, in Buffington v. McDonough Justice Gorsuch argued for overruling the doctrine of agency deference associated with Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). From the opinion: 

From the beginning of the Republic, the American people have rightly expected our courts to resolve disputes about their rights and duties under law without fear or favor to any party—the Executive Branch included. See A. Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L. J. 908, 987 (2017). In this country, it was “well established” early on that courts are not “bound by . . . administrative construction[s]” of the law and those constructions may “be taken into account only to the extent that [they are] supported by valid reasons.” Burnet v. Chicago Portrait Co., 285 U. S. 1, 16 (1932).

...

In this country, we like to boast that persons who come to court are entitled to have independent judges, not politically motivated actors, resolve their rights and duties under law. Here, we promise, individuals may appeal to neutral
magistrates to resolve their disputes about “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Everyone, we say, is entitled to a judicial decision “without respect to persons,” 28 U. S. C. §453, and a “fair trial in a fair
tribunal,” In re Murchison, 349 U. S. 133, 136 (1955). Under a broad reading of Chevron, however, courts often
fail to deliver on all these promises. Rather than provide individuals with the best understanding of their rights and
duties under law a neutral magistrate can muster, we outsource our interpretive responsibilities. Rather than say
what the law is, we tell those who come before us to go ask a bureaucrat. In the process, we introduce into judicial proceedings a “systematic bias toward one of the parties.” P. Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187,
1212 (2016). Nor do we exhibit bias in favor of just any party. We place a finger on the scales of justice in favor of
the most powerful of litigants, the federal government, and against everyone else. In these ways, a maximalist account
of Chevron risks turning Marbury on its head.

(At Volokh Conspiracy, Josh Blackman comments on the latter dissent).