Wayne O'Leary

The Originalist

In retrospect, it was fitting that Donald Trump’s first appointment to the Supreme Court should be Judge Neil M. Gorsuch, formerly of the Denver-based Tenth Circuit Court of Appeals. Gorsuch, scion of an influential Colorado family long active in Republican politics, is a quintessential one-percenter — the Associated Press places his assets at between $3 and $7 million — the perfect complement to a government composed of multimillionaires and billionaires.

A startling exposé published recently in the New York Times ascertained (using financial disclosure filings) that no fewer than 29 leading figures in the Trump administration, including cabinet members, agency heads, and White House advisors, were accustomed to breathing rarified financial air, seven of them members of the billionaire club. Judge Gorsuch is not a billionaire, but he doesn’t need to be; he has a cordial relationship with one, the reclusive, Colorado-born plutocrat Philip F. Anschutz, who owns the conservative Weekly Standard and Washington Examiner, and paved the way for Gorsuch’s judicial career, recommending his 2006 federal appeals-court appointment by George W. Bush.

Gorsuch, no ingrate, has paid back his patron and former legal client by appearing regularly as a speaker at Anschutz’s annual Colorado hunting retreats for the wealthy and well-connected where, according to a Times report, he’s held forth on such topics as the vital importance of sound money and private property. This is one justice who will fit in splendidly adjudicating the interests of those who own the country and will now run it.

Others have benefitted from Anschutz’s largesse as well; he’s a funding benefactor of both the Heritage Foundation and the Federalist Society, the two ideologically conservative organizations most closely involved in providing slates of acceptably right-wing judicial nominees for Republican presidents to evaluate. Perhaps not coincidentally, each group was unabashedly enthusiastic in support of Gorsuch. Since the Colorado judge’s name turned up early and often on Donald Trump’s lists of prospective Supreme Court picks, it’s hard to avoid seeing the hand of Philip Anschutz operating stealthily behind the scenes to deliver a Court nomination to his loyal retainer.

There’s much more to the Gorsuch appointment than influence peddling, of course. In many ways, he’s the conservative legal movement’s beau ideal as a judge, a worthy successor, the Right believes, to the late Antonin Scalia; it’s the reason Senate Republicans were willing to employ the “nuclear option” to get him on the Court. While the mainstream media was agog over Gorsuch’s impressive credentials, judicial temperament, and ingratiating manner, legally oriented conservatives knew exactly what they were getting: a justice whose ideology and youth (49) would make him the intellectual bulwark of a right-wing Court for years to come.

The evidence has been there all along for those who cared to look beyond Gorsuch’s bipartisan demeanor. Some did. An academic study by legal scholars Lee Epstein, Andrew Martin and Kevin Quinn entitled “President-Elect Trump and his Possible Justices,” whose results were released to the press in February, placed Gorsuch on the far right of the current Court’s continuum based on voting patterns — more conservative than Alito and Roberts, barely less so than the extremist Thomas. Gorsuch, they suggested, may even turn out to be marginally more conservative than his hero and role model Scalia.

Two of the new justice’s notable decisions as appeals-court judge reinforce that conclusion. In Hobby Lobby Stores, Inc. v. Sebelius (2013), he ruled that the Affordable Care Act could not require family owned private corporations, which possessed religious rights (!), to include federally mandated contraceptive coverage for their employees in company-sponsored health plans, if such coverage violated corporate ownership’s doctrinal beliefs. That decision, famously upheld a year later by the Scalia-dominated Supreme Court, reinforced the Citizens United ruling of 2010 that corporations are, in effect, “persons.”

And in Gutierrez-Brizuela v. Lynch (2016), Gorsuch ruled against the broad interpretive discretion previously given to regulatory agencies in applying ambiguous federal law (the so-called Chevron doctrine), thereby limiting government oversight of the economy.

These opinions, especially the Hobby Lobby ruling that added freedom of religion to freedom of speech among the individual rights supposedly conferred on corporations by the Constitution under the dubious concept of corporate personhood, endeared Gorsuch to conservatives. His impulse to embed corporate privileges in the founding document once and for all, as though business enterprises were people, made him the man corporate America and its congressional water carriers had to have on the high court. More than that, combined with his social and religious conservatism and regard for states’ rights, it established him in Republican eyes as the rightful heir to the departed Scalia.

Much has been made of the fact that Gorsuch, like Scalia before him, is an “originalist” in legal philosophy. Originalism (or original meaning) is viewed by today’s conservatives as the one true judicial faith; it’s been the dominant theoretical framework on the Court since the 1980s, when conservatives formed their working majority.

To oversimplify, originalism is the idea that component parts of the Constitution should be interpreted as they were understood at the time of ratification in 1787 — focusing “backward not forward” as Gorsuch has said. Textualism, a related concept to which Gorsuch also subscribes (as did Scalia), is the belief that legal statutes should be interpreted literally without regard for their historical or political contexts.

A more popular name for this narrow point of view is “strict constructionism”; it amounts to a form of judicial fundamentalism, with the Constitution analogous to the Bible. Like religious fundamentalists interpreting sacred text, their judicial counterparts reject flexibility in favor of exact adherence to “the word” in judging constitutionality. Practitioners, such as Gorsuch and fellow originalist Clarence Thomas, regard the Constitution not as a living, evolving document adaptable to changing times and circumstances, but as something static, its meaning chiseled in stone for 230 years and forevermore.

Or so they say. But they’ve managed to turn multinational corporations into 18th century persons for purposes of the law and derived unrestricted gun-ownership rights from the sanctioned arming of 18th century state militias. Talk about original meaning!

In actuality, the modern Supreme Court is a political body that, as Mr. Dooley said, follows the election returns. Its reestablished conservative majority wants to rule conservatively and needs only a rationale. For Gorsuch, as it was for Scalia, originalism will do nicely.

Wayne O’Leary is a writer in Orono, Maine, specializing in political economy. He holds a doctorate in American history and is the author of two prizewinning books.

From The Progressive Populist, May 15, 2017


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