Milwaukee Journal-Sentinel | Fernholz, Szafir: A worthy successor to Scalia
This piece originally appeared in the Milwaukee Journal-Sentinel.
If past is prologue, Judge Gorsuch’s record gives us every assurance that he will be a jurist bound by the text of the Constitution.
To many people — including those who disagreed with him — replacing Justice Antonin Scalia on the United States Supreme Court is a fool’s errand. In addition to his outsized personality and inimitable writing style, Scalia revolutionized the role of judges, making textualism and originalism mainstream methods of interpretation. These theories provide that when interpreting a statute or constitutional provision, a judge should be guided first and foremost by the text and original public meaning of the words, not by his political preference.
Last month, President Donald Trump did as well as possible in trying to replace Scalia by nominating 10th Circuit Court of Appeals Judge Neil Gorsuch for the Supreme Court. No one has a crystal ball to conclusively say whether Gorsuch will succeed. All too often, judges who previously vowed to uphold the law have been seduced by the temptation to invoke their political preferences in a case or to be guided by the whims of public opinion polls.
Fortunately, Gorsuch’s 10 years on the federal court of appeals provide a large enough sample size to instill confidence that his judicial philosophy will be one that respects the text and structure of the U.S. Constitution. His record on a wide range of issues has been impressive.
While members of the media are fond of referring to themselves as the “fourth estate,” anyone who has spent time around government knows that the real fourth branch of government is administrative agencies. All too many times, agencies take advantage of poorly written or ambiguous laws and promulgate regulations that impact nearly every facet of daily life. Under a precedent known as “Chevron deference,” courts typically defer to agency interpretation when the statute is ambiguous and the agency decision is allegedly reasonable. Chevron deference has greatly contributed to the growth of the administrative state, giving the executive branch a number of unchecked powers.
To his credit, Gorsuch has expressed deep skepticism of the so-called “Chevron doctrine,” questioning whether it upsets the principle of separation of powers between branches of government enshrined in our Constitution. He writes that Chevron “permit(s) executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”
Of the current members of the court, only Justice Clarence Thomas has expressed a consistent interest in taming the post-constitutional growth of administrative agencies. Together, they could form a potent block that may work to persuade their colleagues to prune back overgrown administrative weeds. Hopefully, one day we will talk skeptically about agency deference the same way we now cast a jaundiced eye on legislative history.
In addition, Gorusch has compiled a strong record on enforcing religious freedom, siding with Hobby Lobby in its claim that the Obama administration violated the Religious Freedom Restoration Act by forcing employers to provide insurance coverage for abortifacient drugs.
Gorusch also has been critical of over-criminalization, arguing in a speech that today’s federal criminal code has come “to cover so many facets of daily life that prosecutors can almost choose their targets with impunity.”
If past is prologue, Gorsuch’s record gives us every assurance that he will be a jurist bound by the text of the Constitution and statutes, and not by personal predilections. By doing so, he will help to protect our constitutional system of government for future generations.
Matthew Fernholz practices civil litigation at a firm in Waukesha. The views expressed in this commentary are his own. C.J. Szafir is vice president for policy and deputy counsel at the Wisconsin Institute for Law & Liberty (WILL), a law and policy center in Milwaukee.