My review of Judge Gorsuch’s judicial record shows he understands the limited role of the judiciary in our constitutional republic. It also reflects that he understands the proper approach to interpreting the Constitution (i.e., the Constitution is not a living document where judges hold power to change it by adding rights with the ink in their pens).
In a recent speech he reaffirmed that:
{mosads}”…legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future…Judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be – not to decide cases based on their own moral convictions or the policy consequences they believe might service society best.”
His record suggests he prioritizes the rule of law and precedent over his own personal views about policy. In United States v. Games-Perez, he ruled against the grain of his own judgement in favor of long established precedent, saying, “Our duty to follow precedent sometimes requires us to make mistakes.”
The value of a judiciary that respects precedent is that it provides predictability in the law and in the conduct of our affairs. Wrongly-decided precedents inaccurately reflecting what the Constitution says however, require correcting.
In Gutierrez v. Lynch, Gorsuch dutifully applied the Supreme Court’s established Chevron doctrine, while at the same time urging the Supreme Court to consider revisiting it. He wrote:
“Chevron and Brand X permit 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…”
Thus, while Gorsuch has proper respect for precedent, he is open to corrective action by the Supreme Court in cases where the precedent incorrectly reflects what the Constitution actually says.
This raises the question of whether he considers the Court’s precedents inventing a “right” of personal autonomy/ identity legitimate. Given he sees the Constitutional power of judicial review as limited, the answer is likely no.
The answer to the question is important because the judicially-invented right serves as the Court’s justification for things like abortion, homosexual conduct, and same sex marriage.
If he finds the plain meaning of the Constitution requires states to determine policy matters like these, rather than an unelected imperial judiciary, he could help return the Rule of Law to a nation urgently in need of it.
William Wagner is president of Salt & Light Global, a Christian academic and humanitarian ministry organization. He is distinguished professor emeritus in constitutional law and served in the United States courts as a federal judge.
The views expressed by contributors are their own and not the views of The Hill.