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The Originalism, Textualism and Strict Constructionism of Neil Gorsuch



Pick your buzzword, what they all mean is that “Neil Gorsuch is a Republican reactionary who will vote the policy preferences of a Republican reactionary in politically salient cases, in opinions that may be written in any or no grand theory”:

On Tuesday, the Republican Party reaped the fruits of its unprecedented Supreme Court blockade. President Donald Trump announced the nomination of Judge Neil Gorsuch, a 49-year-old arch-conservative currently serving on the 10th Circuit Court of Appeals. Trump may have been the people’s second choice in the popular vote, but he will still have succeeded in putting a young, doctrinaire conservative on the Supreme Court.

Like the justice he will be replacing, Antonin Scalia, Gorsuch is an adherent of “originalism” and “textualism” as touchstones for his interpretation of the Constitution. As Scalia’s own jurisprudence reveals, however, these phrases amount to just another way of saying “conservative.”

Asked about another buzzword that was popular in the 1970s and 1980s, the late conservative Chief Justice William Rehnquist said that “a strict constructionist judge is one who favors criminal prosecutors over criminal defendants, and civil rights defendants over civil rights plaintiffs.” Substitute “originalist” or “textualist” for “strict constructionist” and his analysis still applies.

Gorsuch will definitely be an “originalist” in the sense that Scalia was. That is, you can manipulate the levels of abstraction to reach almost any result you desire, and if there’s no possible historical case to be made for your political preference you can and will just ignore it.

And Gorsuch will also be a “textualist” in the sense that Scalia was. That is, in roughly 99% of cases the constitutional text is of no value in deciding a concrete case of any interest — OK, we have identified that the text says “unreasonable search and seizure” or “cruel and unusual punishment,” so now what? (In politically salient statutory cases, it means not mentioning legislative history in reaching the result you would have reached either way.) And in those rare cases where the constitutional text clearly forecloses your desired outcome, you can just assert that “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.”

So, yes, Gorsuch will most assuredly be an “originalist” and “textualist” in the sense that Scalia was. Which is why he should be filibustered even if his appointment was legitimate, which it isn’t.

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