Neil Gorsuch has a book coming out so he’s doing the interview rounds. This one with CNN is worth checking out as an example of how reactionary propaganda regarding “the rule of law” gets disseminated into the wider culture.
The reactionary line on the federal courts in general and the SCOTUS in particular is that courts should interpret law not make it, which means they should stick to the original meaning of legal documents when they were enacted, especially the Constitution, rather than altering their meaning via spurious interpretations to fit the needs of the present society. If a statute or the Constitution needs to be changed, it should be changed via formal amendment, not judicial monkey business in the guise of “interpretation.”
This is an attractive theory on its face (why should unelected life-tenured lawyers make a democracy’s laws rather elected officials?), but it’s not workable in practice if you think about it seriously for three minutes. (ETA: And as Scott points out in comments, this principle is of course instantly discarded whenever it interferes with any really important reactionary goal, like keeping black people from voting, or making it possible for rich people to buy politicians, or installing a Republican as president). This is needless to say an easily avoidable problem for most people, including most judges, who are happy to swallow and then subsequently spew up the most infantile pablum on the subject, as Gorsuch’s interview demonstrates.
He sees a judge’s job as enforcing [the originalist] approach “as faithfully and fearlessly” as possible. “The most vulnerable among us has the same rights as the richest and the most powerful,” he said.
Unless you take the word “rights” to have an extremely narrow meaning, this statement is an oxymoron on its face. Under our current legal regime, a plutocrat has the right to purchase an entire fleet of yachts equipped with helipads and IMAX theaters, while a poor person has no right whatsoever to receive the minimal necessities from the government to avoid starving or freezing to death. These two citizens enjoy equal rights in one sense, but not in many others. Platitudes about the rule of law are designed to get the citizenry, especially that part of it lacking access to IMAX-equipped yachts, to take the extremely narrow definition of rights as a natural fact about the world, as opposed to a political fact that supports fantastic levels of economic and political injustice.
In a similar vein, Gorsuch celebrates the sort of aggressive parochialism about the American legal system that encourages us not to think about its flaws:
“I’d say to anybody who questions what a wonderful inheritance we have in our courts and the rule of law in this country, go spend six weeks in a court in another country of your choice and come back and tell me what you think about our courts in this country.”
These sorts of statements, which are in my extensive experience uttered routinely by high-status legal actors in America, are almost invariably based on a more or less complete ignorance of any other legal system. Not to mention that a defense of the system’s flaws that consists of pointing out that all other systems are supposedly worse is, even if it were accurate, a nonsensical basis for defending the flaws in that system if you think about it for ten seconds, which is why people who say these sorts of things clearly avoid doing so.
One more example: Originalism must deal with, among many other things, the awkward fact that the doctrine of stare decisis — the idea that courts should follow their own precedents, which is a fundamental axiom of the American legal system — is obviously incompatible with originalist interpretation. How does Gorsuch square this particular circle?
Steering clear of any pending case, Gorsuch laid out some of his considerations concerning overturning past cases. “It would be wrong to say never. And on the other hand, it would be wrong to say always,” he said. “A judge has to consider, among other things, how well reasoned the opinion was. How carefully it was done. How long it’s been on the books.”
Well that certainly clears things up.
Again, the function of this kind of thing is to create an illusion for the benefit of the public — and perhaps for the benefit of the learned judge himself — that Supreme Court adjudication is a legal rather than a political activity, and that the line between law and politics is both easily distinguishable and easily maintained by principled judges.
That is nonsense, but it’s the kind of nonsense that is critical to the sorts of obscurantist paeans to “judging rather than legislating” that are rhetorically critical to contemporary reactionary politics in America.