With Gorsuch, Trump Picked the One Man Who Would Check His Power

The day after a Supreme Court nomination announcement is like Christmas morning for court watchers. It’s even more special, really, because we only get a Supreme Court nomination every five years or so. We spend the day analyzing the nominee from every imaginable perspective—contemplating what his academic credentials, legal experience, judicial record, or even biographical information can tell us about the jurisprudence the nominee is likely to display on the High Court.

We also while away the hours asking silly questions like: What can we tell from the fact that President Trump’s pick to replace the late Antonin Scalia, Neil Gorsuch, clerked for Justice Anthony Kennedy back in the 1980s? Does that mean the 10th Circuit judge also favors a constitutional right to same-sex marriage? How about the fact that Gorsuch has a British wife? Is he therefore in favor of unrestricted immigration? And he is an Episcopalian. Does that mean he will take a middle-ground position between precedent and text?

While that can be a fun way to spend the day, asking such questions is largely a futile endeavor. Nominees change once they’re safely on the court. The issues change, too, pushing justices in directions that even they could not have foreseen.

For example, when President Reagan nominated Kennedy in 1987 and the Senate confirmed him in 1988, no one would have expected that he would become the court’s leading voice on gay rights issues. That was something that became part of Kennedy’s legacy as a result of a unique confluence of his own evolving views on government authority and sexual identity.

That said, when something really sticks out in a nominee’s record, there is reason to be more confident that this issue will become a major part of the nominee’s legacy if appointed to the Supreme Court. With Scalia, it was his commitment to originalism that defined his legacy. Indeed, Scalia’s views on many issues evolved during his 30-year tenure, but throughout that time he was consistently the most outspoken and committed originalist on the court.

What is likely to be the issue for Gorsuch? What sticks out most in his record is his willingness to reconsider the Chevron doctrine—the 1984 Supreme Court decision calling for extreme deference to administrative agency discretion, thus opening the path for virtually unlimited executive authority. Yesterday, I compared the doctrine to the Hydra of Lerna and mentioned how Gorsuch, more than any other federal judge to my knowledge, has demonstrated an eagerness to lop off a few of the heads on that judicial doctrine he once described as a “behemoth.”

This part of Gorsuch’s record will no doubt be picked up by the mainstream media, but I can guarantee what will not be picked up—and that is what this says about President Trump. Of the 22 candidates Trump considered, Gorsuch is unmistakably the most hostile toward executive discretion and overreach. No one would mistake Trump for a constitutional scholar, but it is clear that the president was acutely aware that skepticism of agency power is central to Gorsuch’s judicial philosophy. Put more starkly: Trump chose the one judge most likely to limit his executive authority.

That is remarkable. Past presidents have selected nominees, primarily, for the purpose of advancing their particular agendas. There is indeed substantial evidence that President George W. Bush passed over many highly qualified jurists because they seemed insufficiently deferential to his view of the commander-in-chief authority as it applied to the War on Terrorism. Likewise, President Obama clearly selected Elena Kagan in part because of her outspoken support of gay rights at Harvard and Sonia Sotomayor for her commitment to racial justice, an issue that has been at the core of her jurisprudence on the Supreme Court.

So what does Gorsuch tell us about President Trump? This chief executive whom scholars and pundits deride as a “fascist” and “tyrant” appears committed to choosing a jurist who will limit executive discretion, which suggests that Trump’s call to “drain the swamp” will be a critical part of his Supreme Court legacy. It may behoove some of us today to spend less time thinking about what trivial details from Gorsuch’s personal life can tell us about Gorsuch, and more time considering what Gorsuch can tell us about Trump.

About Jesse Merriam

Jesse Merriam is an assistant professor at Loyola University. He holds an M.A. and Ph.D. from Johns Hopkins University and a J.D. from The George Washington University Law School.

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2 responses to “With Gorsuch, Trump Picked the One Man Who Would Check His Power”

  1. Fine article. I hear whispers of Publius Decius Mus (and Masugi and Marini through Decius) gaining decibels; he argued well pre-election in an interview piece here at AG writing that Trump “is trying to do something fundamentally
    constitutional in my opinion. He wants to assert the right of the
    sovereign American people to control their government
    which is the core
    constitutional principle. I think he understands this in an instinctive
    rather than intellectual way. But that’s OK”
    Merriam reminds us that fascists and tyrants don’t limit their power by appointing people who would have that power to limit. Quoting Decius, “the mainstream has accepted that the
    only legitimate rule is rule by the administrative state. Therefore
    anyone who challenges that, however inchoately, must be a tyrant or
    proto-tyrant, is by that challenge alone illegitimate. Thou shall not
    challenge the administrative state!”

    The full interview is here

    Thanks, Jesse Merriam; the election is over but the defense is still needed on the field. We have a long way to go and the Resisters aren’t resting. We can’t either.