Thinking Citizen Blog — US Supreme Court (IX): Neil Gorsuch , Episcopalian, Natural Law, Textualism
Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day
Today’s Topic: US Supreme Court (IX): Neil Gorsuch (1967 — ), Episcopalian, Natural Law, Textualism
Neil Gorsuch is the only Supreme Court Justice that I know of who wrote a doctoral dissertation. The topic was assisted suicide and his position was firmly against. The grounds for that opposition was a philosophy of law often called “natural law” based on the idea that legal and moral positions are inextricably entwined. This is a traditional Catholic perspective and Gorsuch grew up Catholic although now he is an Episcopalian. Overall, his voting record is that of a centrist-conservative. He has been accused by many conservatives of violating his textualist principles. Most notably in the LGTQ rights case of Bostock v Clayton County (2020). Experts — please chime in. Correct, elaborate, elucidate.
BACKGROUND — Colorado, Harvard, Oxford
1. Born in Denver. Both parents lawyers. Mother first female head of the Environmental Protection Agency (under Ronald Reagan) after serving two term in Congress as a Representative from Colorado.
2. Phi Beta Kappa graduate of Columbia, law degree from Harvard (1991), DPhil from Oxford in 2004. Clerked for David Sentelle of the US Court of Appeals and then for Supreme Court Justices White and Kennedy.
3. On the US Court of Appeals from 2006 to 2017. Nominated to the Supreme Court by President Trump in 2017. Confirmed by vote of 54–45 with three Democrats joining the Republicans.
IN GENERAL A CONSERVATIVE BUT NOT IN BOSTOCK (2020)
1. Siding with the four Democratic justices and Chief Justice Roberts, Gorsuch wrote the majority opinion in the 6–3 decision in Bostock v Clayton County (2020) in which the Court ruled that discrimination of the basis of sexual orientation is a violation of Title VII of the Civil Rights Act of 1964.
2. Justices Thomas, Alito, and Kavanaugh dissented. Alito: “Man will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.”
3. Gorsuch however warned against stretching the implications of the decision: “They say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today but none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.”
NB: Gorsuch was sharply criticized by conservative legal scholars for violating textualist and originalist principles. As background: this was one of three landmark LGBTQ rights cases of the last 20 years. The others are Lawerence v. Texas (2003), which overruled the 1986 decision of Bowers v Hardwick (1986) and Obergefell v Hodges (2015), which affirmed the fundamental right to marry of same sex couples.
GORSCH QUOTES ON THE PROPER ROLE OF COURTS IN A DEMOCRACY
1. “Judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they wish it to be in light of their own political views.”
2. “Our job is the job of interpreting the Constitution. And that job isn’t some inkblot on which litigants project their hopes and fears.”
3. “This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose. In constitutional litigation, too, experiments and pilot programs — real-world laboratories in which ideas can be assessed on the results they produce — are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.”
NB: “It would be a very good thing for all involved — the country, an independent judiciary, and the Left itself — if liberals take a page from David von Drehle and their own judges of the New Deal era, kick their addiction to constitutional litigation, and return to their New Deal roots of trying to win elections rather than lawsuits.”
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