Will the Real Justice Gorsuch Please Stand Up?
Has a great judge been body-snatched?
June 21, 2020
The logic of Justice Neil Gorsuch’s mid-June majority opinion for the Supreme Court in Bostock v. Clayton County, outlawing employment discrimination against homosexuals and transgendered individuals, is so at odds with his previous jurisprudence and his character that the editors of the Wall Street Journal wonder if he’s been body-snatched by aliens. Or perhaps the noxious emanations and penumbras of Warren Court activism have seeped up from the Supreme Court’s crypt and addled what was once the most judicious of judges. Before hazarding a tentative diagnosis, though, let’s recall who the justice was before this seizure occurred.
What shines out most clearly from years of his writings is their humanness. You might think that’s just the result of his easygoing Western modesty—he’s a hiking, skiing, fly-fishing Coloradan, and a third-generation Colorado lawyer, at that. But in fact, that quality springs from a deeper source. He had thought long and hard about what kind of person one has to be as a judge and had striven to make himself that man. And the reason that effort seemed so important to him is the other aspect of the humanness that suffuses his opinions and speeches: judging involves the fate of real, individual people, whose case before you may well be the most important thing in their lives, ever. They risk losing their livelihoods or years of their lives in prison. It’s the judge’s job to fulfill for them the “promise of equal justice under law for all persons”—an ideal that is “one of the noblest of human aspirations in any place or age,” he writes. That’s no small task.
We Americans like to think, with historical justification, that our vision of a self-governing republic—where citizens, endowed with equal rights, will rule themselves by laws that they themselves have made through their elected representatives—is as close as mankind has come to realizing that ideal. The Founding Fathers “fought a revolution for the right not to be ruled by a monarch or any other unelected elite, judges included,” Gorsuch writes. At the Constitutional Convention, they created “a nation under laws as adopted by the people, not a nation ruled by unelected elders.” But they understood how delicate such an invention was and what vigilance it would take to preserve it; Gorsuch stresses Benjamin Franklin’s answer to the question of what kind of government the just-ended convention had given America: “A Republic, if You Can Keep It” (the title of Gorsuch’s 2019 book).
What makes the task of maintenance so difficult is mankind’s inborn “instinct to seek and misuse power,” which can seduce officials to turn the rule of law into the rule of men, Gorsuch notes. The Constitution’s chief aim is to prevent that usurpation by placing “real structural limits on the power of government and those who run it.” That’s why the Framers explicitly enumerated the powers that government would have—those powers and no others—and why they divided those limited powers among three governmental branches and further split the lawmaking power between two legislative houses. And that’s why they listed those powers and inscribed that structure on parchment and submitted it to the citizens for ratification. They had taken to heart political philosopher John Locke’s dictum that “[f]reedom of men under government is, to have a standing rule to live by, common to every one of that society,” Gorsuch quotes, “and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man.”
A standing rule—a written Constitution to ensure that the limits on governmental power “may not be mistaken, or forgotten,” as Chief Justice John Marshall had put it—this is what a judge pledges to uphold. That rule and those limits do not change. They are to be observed in “the sense in which the Constitution was accepted and ratified by the nation,” Constitution architect James Madison insisted. To Thomas Jefferson, Gorsuch reminds us, that meant that the words on the original parchment “should not be interpreted by ‘what meaning may be squeezed out of the text, or invented against it’ but instead by ‘the probable one in which it was passed.’ ” Like Justice Antonin Scalia, whom he replaced on the Court, or his colleague Justice Clarence Thomas, Gorsuch until now has been an “originalist,” believing that a judge’s first duty is to preserve and apply that fixed, unchanging standard that gives citizens fair notice of what the law does and does not permit. Anything else is not the rule of law but arbitrary power.
In his decade’s service on the Tenth Circuit Court of Appeals, Gorsuch saw concrete examples of how arbitrary power, unmoored to a fixed standard, can shatter individual lives in jaw-dropping miscarriages of justice. Take the case of Miguel Games-Perez, whom federal prosecutors charged with breaking a law that criminalizes knowingly being a felon in possession of a gun. He had a gun, all right, but he had earlier pled guilty to a previous crime on the judge’s assurance that doing so would keep a felony conviction off his record. The judge was mistaken, but Games-Perez reasonably thought that he was not a felon. In this new case, however, the prosecutor argued that the legislative history of the law in question—the so-called House Report—makes clear that Congress was updating a prior statute that made it a crime for a felon knowingly to have a gun, period. There’s no mention of his knowledge of his status as a felon.
But that’s not what the new law says, Gorsuch objected in a sharp dissent. Its language makes clear that conviction requires a defendant to know both that he has a gun and that he is a felon. Nevertheless, his colleagues reasoned that, considering the legislative history and knowing Congress’s growing concern with gun violence, surely the legislators must have intended simply to outlaw a felon’s possession of a gun. So despite the plain language of the law, Games-Perez sat in prison for five years.
This injustice goes to the heart of Gorsuch’s originalism, different in its emphasis from that of Justices Scalia or Thomas. To him, the separation of powers is the strongest protection of freedom that the Framers gave us. It’s “one of their most important contributions to human liberty,” more crucial even than the Bill of Rights, which they tacked on later as an afterthought. When one branch of government usurps powers that the Constitution vests in a different branch, fundamental rights get crushed.
The judiciary’s misappropriation of the legislative power in United States v. Games-Perez flings down and dances upon one of the most basic principles of Anglo-American jurisprudence: that of due process of law, enshrined in the Fifth Amendment and guaranteeing, among other process rights, that nobody can be deprived of life, liberty, or property without prior notification by written law that his action is illegal. William Blackstone, for example, whose law text many of the Founders and Framers studied, once voided a statute that criminalized stealing “sheep, or other cattle” because the term “cattle” was too vague and broad to give fair notice of what was forbidden. He urged Parliament to rewrite the law, specifying “by name” what animals were included, such as “bulls, cows, oxen,” and so on.
But the Tenth Circuit is keeping Games-Perez behind bars “without requiring proof of his guilt under the written laws of the land,” Gorsuch objects. It’s not enough for the courts to claim that Congress “must have meant” simply to criminalize the knowing carrying of a gun by a felon, despite the plain words of the law. “Congress could have written the law differently than it did, and it is always free to rewrite the law when it wishes,” Gorsuch observes. “But in our legal order it is the role of the courts to apply the law as it is written,” a point he reiterates in one of his first majority opinions written for the Supreme Court, United States v. Davis et al.
The Framers, after all, meant lawmaking to be a lot harder than the mere waving of judicial hands. “The demand that all legislation must survive two separate houses and presidential review guarantees that these laws will be debated in public and by electorally accountable representatives so the people will know and have a chance to shape the rules they must live by,” Gorsuch writes. That’s what self-government means. The compromise and horse-trading involved also give minority factions a chance to pool their votes to shield their interests from the tyranny of the majority.
Moreover, with so many interests and points of view involved in the sausage-making that produced the law, how can anyone know for sure what the “intent” of Congress was? Its debates are process, not product. And congressional staff reports are even flimsier evidence of legislative “intent.” Gorsuch quotes Sixth Circuit appellate judge Raymond Kethledge’s wry account of writing such documents as a young Senate staffer. It was “like being a teenager at home while your parents are away for the weekend: there was no supervision. I was able to write more or less what I pleased,” Kethledge marveled. “[M]ost members of Congress . . . have no idea at all of what is in the legislative history for a particular bill.” An exchange between former GOP Senate leader Bob Dole and a fellow senator underscores this point. After admitting that he had no idea who wrote a particular committee report, Dole replied to the question of whether he himself had read it: “I am working on it. It’s not a bestseller, but I am working on it.”
When the Framers gave all judicial power to the courts, they meant only the judicial power. They didn’t give a little smidgen of legislative power as a garnish: all of that belongs to Congress. Gorsuch more than once quotes framer Alexander Hamilton’s Federalist 78 statement that “while ‘liberty can have nothing to fear from the judiciary alone,’ it has ‘every thing to fear’ from the union of the judicial and legislative powers.” He hammers home the point with Blackstone’s darker warning about that union: “men would then be[come] slaves to their magistrates.” Judges can only interpret the written law, exercising, as Hamilton stressed, “ ‘merely judgment,’ not ‘FORCE [or] WILL.’ ”
As Gorsuch well knows, it takes a mountain of self-restraint to follow that dictum. Following the Constitution and the statutes as written will often enough lead a judge to a conclusion that he dislikes. But his duty is to go where the law leads. Otherwise, he will end up sending the Games-Perezes of the world to prison on his whim—and once the rule of law shades into the rule of men, it’s not clear that there can be only small tyrannies.
The self-restraint that a judge’s oath demands entails a modesty that goes beyond mere manner, a humility deeper than Gorsuch’s Western unpretentiousness. As a law clerk for Justice Byron White in 1993, Gorsuch got his first lesson in that duty while walking with his boss down a Court corridor lined with portraits of former justices. How many could he name? White asked. “About half,” Gorsuch ruefully admitted. “Me too,” White replied. “We’ll all be forgotten soon enough.” That comment sunk deep into Gorsuch’s heart. The fame and power that cloak you as a justice are evanescent. What’s lasting about your life is something different.
He tried to articulate that lesson in a legal-ethics course that he taught at the University of Colorado Law School while on the Tenth Circuit. Each year, after a discussion of a point of legal morality in which most students—“good people, with strong values,” he emphasizes—took the shadier side of the argument, he’d ask them to write the obituary they’d like to see of themselves. No one mentioned the number of her billable hours, the size of his car or house—only the wish to have left the world better and be remembered as kind and loving. To drive home what he wanted to impart, he would read these lawyers-and-judges-to-be an epitaph of a forgotten colonial judge, Increase Sumner, that he’d found in the Boston graveyard where Paul Revere and John Hancock lie buried. The tombstone praises Sumner for his patience, impartiality, and decisiveness as a judge and his mild and affectionate temperament as a man.
Gorsuch keeps a copy of that inscription on his desk, as a reminder to himself. For all his easygoing manner, imagine the strength of will it must take to put aside ego and serve only the law for a man who excelled at the elite Jesuit Georgetown Prep while his mother, Anne Gorsuch Burford, served as administrator of the Environmental Protection Agency; who raced through Columbia College in only three years, while cofounding the Columbia Federalist, a bravely conservative newspaper on a politically correct campus; whose stellar performance at Harvard Law earned him a Marshall Scholarship to Oxford; who won, on his return to America, a clerkship for Justice White, and who joined his Georgetown Prep schoolmate Brett Kavanaugh as one of Justice Anthony Kennedy’s clerks when White retired; and who had his Oxford Ph.D. published as a book, The Future of Assisted Suicide and Euthanasia. Top that off with a decade as a mega-earning litigation partner at the elite Kellogg, Huber Washington law firm and then a few years as a high-ranking Justice Department official in the George W. Bush administration, and you have a man who could be, says a Justice Department colleague, “king of the universe.” But at age 39, he accepted an appellate judgeship and has striven to serve the law—Locke’s “standing rule”—faithfully ever since.
Any other way of judging subverts self-government—on almost comically flimsy grounds, as Gorsuch shows, by letting the proponents of alternatives to originalism describe their rationales in their own words. Harvard Law professor Mark Tushnet, for instance, would decide a case on “an explicitly political judgment: which result is, in the existing circumstances, most likely to advance the cause of socialism?” Berkeley Law dean Erwin Chemerinsky counsels judges to “make value judgments that come down to their own ideology and life experiences,” in the same partisan spirit as the late Professor Ronald Dworkin’s assertion that no judge can construe the Constitution “without making controversial judgments of political morality in the light of his own political principles.” Judge Richard Posner’s method is “ ‘to figure out, what is a sensible solution to this problem,’ without worrying ‘about doctrine, precedent, and all that stuff,’ ” thus making no pretense of being anything but a legislator. Judge Guido Calabresi, ex–Yale Law dean, offers a more modest version of the magistrate-legislator, counseling judges to practice statutory interpretation in a common-law fashion, making such modest practical tweaks as they see necessary for efficiency and modernization—with the ultimate result, Gorsuch notes, that you will have a judicially made, rather than a legislatively made, legal order that doesn’t rest on the consent of the governed.
While all these learned judges and law professors may be very wise, “there’s nothing in the Constitution that forbids the people’s representatives from adopting stupid laws,” Gorsuch notes. “In a government by the people, it is our responsibility as a people to ensure that our representatives enact wise laws,” which means, in turn, that a self-governing nation needs a vibrant civic culture. We don’t need—as these antidemocratic theorists of the “living Constitution,” rather than the written one, seem to think—to have “philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them.” And for all their wisdom, Gorsuch mildly but incontrovertibly observes, the unmoored mode of judging that these mandarins recommend has produced such Supreme Court decisions as Dred Scott—which, by undoing the Missouri Compromise and holding that a slave was property, not a person, and that no black could be a U.S. citizen, brought the Civil War a giant step closer—and Korematsu, upholding FDR’s executive order to intern Japanese-American citizens in concentration camps.
In the same mild but devastatingly logical spirit, Gorsuch shot down a real-life embodiment of the “living Constitution” doctrine in his majority opinion for the Court in Ramos v. Louisiana this April. To forestall the chance that black jurors could save black defendants from conviction by refusing to join a guilty verdict and thus hanging the jury, Louisiana passed an 1898 law allowing a 10–2 majority to convict. The dissenting justices in this year’s case certainly didn’t defend that Jim Crow rationale, but they were willing to let stand Ramos’s life sentence on a 10–2 guilty verdict by invoking a bizarre Warren Court precedent that upheld the Louisiana law on the grounds that “unanimity’s costs outweigh its benefits in the modern era.” In making this erroneous “functionalist” argument, Gorsuch objected, the dissenting justices were trying to rewrite not merely a law but a centuries-old understanding, restated from Blackstone to Madison to Justice Joseph Story, that the right to a jury trial guaranteed by the Sixth Amendment includes the right to a unanimous verdict.
There’s another strain in Gorsuch’s jurisprudence that combats what he considers a more insidious overstepping of the separation of powers, one that ends—ever more often—in something like tyranny. As an instructive example from his Tenth Circuit days, he often points to the case of Alfonzo De Niz Robles, an illegal alien married to an American, with whom he had four American kids. De Niz Robles puzzled over how to gain lawful residency, after his wife tried and failed to get him a spousal visa. Two provisions of federal immigration law gave conflicting answers, and a decision that Gorsuch wrote for the Tenth Circuit resolved that contradiction in 2005, ruling that the law’s granting of permission to apply for immediate legal status took precedence over its requirement that the illegal alien leave the country for ten years before he could apply for legal admission.
De Niz Robles had already gone back to Mexico for two years, but, encouraged by Gorsuch’s ruling, he came back to his wife and kids and petitioned for legal status. Years later, while his application was still pending, as Gorsuch acerbically continues the tale, “an administrative agency issued an edict purporting to ‘overrule’ the Tenth Circuit’s precedent” and reinstated the ten-year waiting period. “So, in essence,” Gorsuch grumbles, “an executive agency claimed the power to overrule a judicial decision,” on which De Niz Robles had already placed reliance. According to the agency’s “claim,” he’d now have to return to Mexico and start the clock all over again.
At issue here is Gorsuch’s skepticism about the legitimacy of the administrative state, and one of the key contributions of his High Court tenure seemed likely to be the reining-in and shrinking of what FDR, even as he enlarged it, called a “ ‘fourth branch’ of Government for which there is no sanction in the Constitution,” and which Gorsuch, going further, sees as threatening to “alter piece by piece the framers’ work and risk the underlying values it was designed to serve”: the ordered liberty and equality before the law that the Constitution protects. He comes to this view by inheritance, so to speak. After President Reagan appointed his mother to head the EPA and curb that agency’s overreach, she met such pushback from Congress that, after 22 months in office, it cited her for contempt for withholding documents under executive privilege, and she resigned—though her high schooler son urged her to stick to her guns. I don’t tell this tale as armchair psychologizing but only to point out that Gorsuch began thinking about this issue in sophisticated terms as a schoolboy and has pondered it ever since.
A thumbnail reminder of how the administrative state works: Congress passes a law setting up an executive-branch or independent agency, such as the SEC or the EPA, and charges it with some overarching task—keeping the air and water clean, say—leaving the agency’s supposedly apolitical experts to figure out how to do that in detail. The agency then makes regulations, having the force of law, to accomplish its task. It monitors obedience to its rules, and agency officials, called “administrative law judges,” adjudicate infractions and impose punishments on individuals and companies whom they deem noncompliant.
Gorsuch views with suspicion this whole system, which overturns the separation of powers by blending legislative, judicial, and executive authority in a single agency, like cake batter. For starters, “can Congress really delegate its legislative authority—its power to write new rules of general applicability—to executive agencies?” he asks. Certainly, lawmakers have been ever more willing to abdicate their chief responsibility by handing off tough problems to an agency to solve, taking credit if the bureaucrats succeed and leaving them with the blame if they fail or rile constituents. One result of proliferating so many mini-lawmakers—who constitute the “swamp” or the “deep state,” which, experience shows, is anything but apolitical—is that we now have far too many laws, more than 20 regulations for every act of Congress, including a rule that will send you to prison if you label as “ketchup” a substance that plops through a specialized drip-o-meter at the incorrect rate.
But even if it were possible to justify this fundamental deviation from the Framers’ scheme, there remains “an elephant in the room,” Gorsuch argues. That’s the Chevron deference doctrine, which the Supreme Court enunciated in 1984 and which holds that when Congress passes any law to be implemented by an administrative agency, it intends for the agency, not the courts, to resolve any ambiguity in the statute. What this doctrine means in practice—along with Auer deference, requiring courts to defer to agencies’ interpretations of their own regulations—is that an agency can make new rules simply through interpretations of supposed ambiguities, skirting the limits that the 1946 Administrative Procedure Act puts on bureaucrats, such as requiring a formal notice-and-comment procedure for promulgating new rules. And, of course, Chevron revokes the APA’s preservation of the interpretive power of the courts, trampling Chief Justice John Marshall’s dictum that “[i]t is emphatically the duty of the Judicial Department to say what the law is.”
Suppose one of these agencies gets you in its clutches, and you find yourself before one of its administrative judges. First, he’s not a real Article III judge, his impartiality protected from political or job-security pressure by lifetime tenure and an irreducible salary. He’s a bureaucrat, answerable to his department head or cabinet secretary, who most certainly has a political agenda and expects his minions to advance it. Armed with Chevron and Auer—and also Brand X, which requires courts to overrule their own interpretation of laws governing agencies in deference to agencies’ interpretations—these make-believe judges can interpret existing law and regulations so as retroactively to criminalize actions that you have already taken, depriving you of constitutional protection against ex post facto laws and your due-process right of prior notice. That’s where Alfonzo De Niz Robles finds himself, and he’s far from alone in that unconstitutional predicament. And so out of control is this whole process, with agencies unable to keep track of their own regulations, that the Centers for Medicare & Medicaid Services fined a home health-care agency $800,000 for violating rules that weren’t in place until years after the alleged violations occurred.
The solution, Gorsuch writes, is for the Supreme Court to junk Chevron, just as, in his opinion in Kisor v. Wilkie last year, he called on his fellow justices to overrule Auer. The administrative state can function just fine without these doctrines, he writes; but these are not likely to be his last pronouncements on the subject. Left-of-center justices blanch at the thought of overturning precedent in this way, anxious to shield the Court’s Roe v. Wade abortion ruling, without thinking that the doctrine of stare decisis that they reflexively invoke—the venerable and mostly sensible principle that judges should respect and uphold precedent—can’t be absolute, because it would also hold for such worse-than-mistaken decisions as Dred Scott or Plessy v. Ferguson or Korematsu.
One intriguing Gorsuch Supreme Court opinion shows his curiosity and flexibility of mind as he waves aside an erroneous precedent while at the same time wondering if his predecessors who wrote it glimpsed a truth that they couldn’t properly articulate but that today’s legislators need to ponder and address. The question in Carpenter v. United States was whether the police, in using cellphone location data to tie a career armed robber to a string of electronics-store stickups in Michigan and Ohio, had violated his Fourth Amendment protection against unreasonable search and seizure. The Fourth Amendment, Gorsuch points out, protects your person, houses, papers, and effects. There’s no mention of cellphone location data. As for Carpenter’s reliance on the Warren Court’s assertion in Katz v. United States in 1967 (two years after it had conjured up a supposed “right to privacy” out of the Constitution’s invisible “emanations, formed by penumbras” in Griswold v. Connecticut) that what the Fourth Amendment really safeguards is a person’s “reasonable expectation of privacy”: that’s just a judicial fiction too flimsy to keep Carpenter out of prison, Gorsuch opines.
Even so, he continues, shouldn’t a person have some kind of control over data he entrusts to a third party? Just because you hand your papers or effects over to someone else doesn’t necessarily mean that they cease to be yours, as the Court ruled in 1878, when it held that letters you entrust to the U.S. mail don’t lose their Fourth Amendment shield. Perhaps you continue to have a property right in your electronic data, too, though Carpenter’s lawyers didn’t ask the Court to consider that question. In the meantime, state and federal legislators are doing the job they were elected to do by crafting laws that spell out what rights cellphone, Internet, and social media users have with respect to the data that they turn over to suppliers of these services, including cell-site location data. Deeming these data your legal property promises a much sounder basis for judicial decision making than Katz’s moonshine.
The law, in other words—and in clear contradiction of the basis of all “living Constitution” theories—can adapt to modern changes without violating unchanging constitutional verities. So, were most American citizens to conclude that discrimination against homosexuals and transgendered individuals is wrong, for example, they could press their elected representatives to make the law reflect that moral view. And as a matter of fact, more than a dozen bills to outlaw discrimination based on sexual orientation have failed to pass the House since 1975, and half a dozen to ban discrimination based on gender identity have failed since 2007. Unlike staff reports, this is relevant legislative history. We know what the people’s representatives reject.
It’s a puzzle, therefore, how the judge who wrote such wise opinions over so many years, safeguarding the separation of powers and warning that when judges usurp legislative powers, they subvert government by consent, could have penned the preposterous Bostock decision, which purports to show, through a charade of rigorous textual analysis, that the 1964 Civil Rights Act, in forbidding sex discrimination in employment, forbade such discrimination on sexual-orientation and gender-identity grounds, too. Gorsuch’s contorted analysis of the act’s text is sophistry that any freshman English teacher would flunk—and that Jefferson would contemptuously dismiss as squeezing out a meaning against the text, with a whiff of bad faith. Justice Samuel Alito’s dissent was perfectly correct to call the majority’s decision pure legislation. As he reminds his colleagues, originalism means interpreting the language of a statute in the ordinary meaning in which its framers and their contemporaries understood it. In 1964, he irrefutably points out, no one “thought that discrimination because of sex meant discrimination because of sexual orientation—not to mention gender identity, a concept that was essentially unknown at the time.”
In the end, Bostock is even more egregious than Roe v. Wade, in that not only does it make up law out of whole cloth, usurping the legislative function, but it also does so in contravention of the expressed will of the legislature—expressed not once but time and time again.
What led Gorsuch to write something so tendentious, assuming that body-snatchers are not to blame? Was the scorn of politically correct friends too much for his family to bear? Did his tenderness for the humanness of the homosexual and transgendered plaintiffs outweigh his tenderness for the Constitution? Has the timidity of Chief Justice John Roberts infected him with the fear that bullies like Senator Sheldon Whitehouse will make good on their crude threats to pack the Court in the event of a Democratic sweep of the presidency and the Senate, just as that fear caused the first Justice Roberts—Owen Roberts—to make the infamous “switch in time that saved nine” in the face of Franklin Roosevelt’s threat to pack the Court if it kept blocking the New Deal? As Columbia Law professor Philip Hamburger wrote, with some scorn, of earlier judges: “Why bother saving the court at the cost of giving up on the law?”
Whatever the reason, please, Justice Gorsuch, man up again.