Monday, May 8, 2017

Gorsuch--Yes, Backward and Extreme (Part 2)

It's now Justice Neil Gorsuch, having been confirmed by the Senate following the Republicans' deployment of the nuclear option. I've been tied up with (over)commitments--not that I could have affected the outcome--but let's continue with this series because Gorsuch's record is at least as important now as it was when he was a nominee.

We saw how Judge, now Justice Gorsuch's avowed approach to judicial decision-making is "focusing backward, not forward." It's viewing constitutional rights in accordance with "what a reasonable reader at the time...would have understood the law to be." Judicial decision-making is "not a forward-looking but a backward-looking authority." Those are his words. That is his judicial creed. That is what he has reaffirmed repeatedly in speeches and writings, and applied in cases.

At first blush, Gorsuch's approach might sound perfectly reasonable. You know, it's a specie of the bromide that "judges should just apply the law and not make it." But any thoughtful consideration exposes Gorsuch's judicial creed as drastically reactionary. As a prescription for undoing our nation's cherished advances in fundamental constitutional protections.

That is no exaggeration. That is just plain fact and history. That might be his and others' preference. But that is what it is.

Gorsuch's judicial creed, which had been famously professed by his predecessor, Antonin Scalia, is part of a tradition that has opposed constitutional advances and has condemned those advances after they have been made. Yes, opposed them and condemned them--at least until those advances have become part of our culture, a cherished part of our culture, and to oppose them any longer is too embarrassing.

So, for  example, as mentioned previously [See Part 1.], the Gorsuch-Scalia creed would have precluded the landmark protections of equal rights for African-Americans, for women, for gays and lesbians, etc. Consider again the consequences if the Supreme Court had adopted the Gorsuch-Scalia approach to decision-making--i.e., looking "backward" to what the constitutional provisions meant "at the time":

  •  Racial segregation would have been upheld, not outlawed--the Supreme Court in Brown v. Board of Education (1954) deliberately re-construed the 14th Amendment to prohibit segregation, contrary to what had long been permitted and to what that amendment meant "at the time" it was ratified in 1868.
  • State laws preventing women from owning property or running a business or going to law school, etc., would have been upheld, not overruled--the Supreme Court in Reed v. Reed (1971) extended "equal protection" beyond what it meant "at the time" of ratification and invalidated laws that treated men better than women.
  • State laws that discriminated against and even criminally punished gays and lesbians would have been upheld, not declared unconstitutional--the Supreme Court in Lawrence v. Texas (2003) held that "equal protection" and "due process" protected gays and lesbians, even though those constitutional provisions certainly did not mean that "at the time."
  • And so many others, such as Loving v. Virginia (1967) [invalidating laws that prohibited inter-racial marriage]; Griswold v. Connecticut (1965) [invalidating laws that prohibited birth control]; Heart of Atlanta Motel v. U.S. and Katzenbach v. McClung (1964) [upholding civil rights laws that prohibit racial discrimination in privately owned lodging and restaurants]; West Virginia v. Barnette (1943) [upholding the right of religious-objecting Jehovah Witnesses not to salute the flag].
In every one of those landmark cases, and so many others, the Supreme Court rejected the Gorsuch-Scalia approach. Instead of confining constitutional provisions to what might have been their narrow, specific meanings "at the time" they were written and ratified, the Court gave life to the overriding, fundamental principles that those provisions reflected.

So the 14th Amendment's guarantee of "equal protection" in those cherished landmarks was not confined to "separate but equal" treatment for the newly freed black slaves. Instead, overruling Plessy v. Ferguson (1896) and breaking from the "backward-looking" "at the time" meaning of the 14th Amendment, the Court in Brown gave life to the overriding principle of equality under the law to put an end to legalized segregation of the races. Likewise, repudiating a long series of precedents that permitted disparate treatment of women, including some then-recent decisions, the Court in Reed expanded "equal protection" to invalidate gender as well as racial discrimination. And so forth.

Historically, the Gorsuch-Scalia brand of "backward-looking," "at the time," so-called "originalist-textualist" jurisprudence has always reared its head--yes, its ugly head--whenever the Supreme Court has advanced equal rights for minorities or women. Whether the Court was outlawing segregation, or protecting inter-racial marriages, or upholding the civil rights laws, or requiring that women have the same rights as men, or invalidating laws that discriminated on the basis of sexual orientation, the jurisprudence embraced by now-Justice Gorsuch has always been used to oppose those advances and to denounce them as illegitimate.

Yes, the repeated condemnation of all those cherished landmarks and so many others has been the same: "That's not what the constitutional provision meant at the time; that's not its original meaning." Fortunately for our country, that "originalist-textualist" approach has historically been rejected whenever the Court has understood that fundamental equality and fairness and decency were far more important constitutional principles than some avowed method of interpretation.

And it's not just the equal rights and privacy rights landmarks. The same is true for those landmarks that gave life to the rights of the accused. The Gorsuch-Scalia jurisprudence would have precluded those advances in criminal justice as well. We'll take a look at some of those in the next part of this series.