Is Neil Gorsuch Worth the Cost?
One of the reasons Trump won the evangelical vote was his lip service to the pro-life cause. The consensus within evangelical circles is that their vote was vindicated by the appointment of Neil Gorsuch. Is Neil Gorsuch worth the cost?
This begs two questions: 1) What is the worth of Gorsuch? and 2) What is the cost?
The Value of Neil Gorsuch
In order to evaluate the worth of Gorsuch, I reviewed key opinions that he wrote for the Tenth Circuit Court in Denver, as well as the opinions he has written so far on the Supreme Court. Additionally, I read his book The Future of Assisted Suicide. First, the book.
The book is based on his doctoral thesis at Oxford. It describes and evaluates four arguments that support euthanasia, and it proposes one argument against euthanasia. The four arguments that he evaluates in support of euthanasia are 1) legal precedent; 2) personal autonomy; 3) utilitarianism; and 4) comparison to advance care directives. The argument that he advances against euthanasia is the inviolability of life principle.
Justice Gorsuch clearly possesses a superior intellect and an excellent grasp of the pertinent legal principles. He writes with an objective and articulate voice, in a way that is accessible to the average non-legal mind. His conclusion is that the relative importance of the inviolability of life principle overrides all other principles that appear to support euthanasia.
Generally speaking, I agree with much of what he concludes. As an orthodox Christian, I accept the orthodox doctrine of Imago Dei, the source of almost all inviolability of life arguments. The only point on which I might quibble is personal autonomy, which I personally believe is the best contra argument. I don’t agree that just because regulation of euthanasia is (admittedly) difficult that principles of autonomy and self-determination should automatically be rejected in end-of-life scenarios.
While the book does not provide any specific indication of his thoughts on abortion, I think it’s safe to conclude that his strong belief in the inviolability of life principle would tend to bias him against abortion generally, personally. How that might play out judicially, in legalization of abortion issues, is not so clear. From his evaluation of the legal precedents in apparent support of euthanasia, it seems to me that he demonstrates a fair amount of respect for historical judicial interpretations, as Roe vs. Wade would now be considered. Although he was raised in the Catholic Church, Justice Gorsuch is currently a member of an Episcopal church. As a denomination, the Episcopal church both condemns abortion, and accepts a woman’s right to choose. I don’t think he’s a slam dunk vote against the right to choose if abortion ever came before the Supreme Court again.
At any rate, personal opinions of abortion and legalization thereof aside (I am pro-life in a non-traditional sense), the book advanced my opinion of Justice Gorsuch as a thoughtful and competent jurist, with the personal integrity to consider all facts and arguments objectively.
What about more recent evidence of his legal approach, and character? To assess his development since his Oxford days in terms of personal character, and personal philosophy of law, I researched key opinions that he has written as a justice.
One of the concerns expressed by progressives about Justice Gorsuch is that he is an “originalist.” I think popular conceptualizations of “originalism” over against “living constitutionalism” have been erroneously associated with the conservative right, and the progressive left, respectively. See Steven Calabresi’s white paper on originalism here. Both theories can be, and have been, used to advance conservative as well as liberal agendas, so I think it’s a mistake to associate either with one or the other ideological camp.
The more pertinent question is whether or not Justice Gorsuch believes that “judicial activism,” a subset of “living constitutionalism,” is ever justified. “Judicial activism” is defined in Black’s Law Dictionary as a “philosophy which motivates judges to depart from strict adherence to judicial precedent in favor of progressive and new social policies which are not always consistent with restraint expected of appellate judges, that may be intrusive of legislative and executive matters.”
What do some of his recent opinions tell us about this point? In the 2016 case, A.M. Vs. Ann Holmes, et al, Justice Gorsuch dissented in a court decision in favor of the arrest of a minor student for disrupting class with burping, citing “judicial overreach,” that police response should be in proportion to the offense. Justice Gorsuch further editorialized,
Often enough the law can be “a ass — a idiot,” Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838) — and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands — and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass as they do. I respectfully dissent. (p. 98)
It’s clear from this example that Justice Gorsuch believes “judicial activism” has no place in a courtroom. But it’s interesting to note that his opinion was contrary to the majority opinion that an “originalist” interpretation required a ruling in the service of a conservative cause, favoring police authority at the expense of the civil rights of a defendant. Even more interestingly, in a previous paragraph of the opinion, Justice Gorsuch criticized his colleagues for disregarding the interpretations of judges in other states in similar cases, an indication of his respect for legal precedent.
In another 2016 Tenth Circuit Court case, Gutierrez-Brizuela vs. Lynch, an immigration case, Judge Gorsuch wrote the majority opinion, finding that immigration officials overstepped their authority. Of even more interest is his discussion in that same opinion of the “Chevron doctrine,” a legal precedent that expands executive powers (executive activism):
There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is 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. (p. 15)
Of course, the executive in question in this case was President Obama. But I see nothing in anything of what I’ve read about Gorsuch that leads me to believe he lacks the personal courage or integrity to apply the same questions about Chevron to a Trump Administration. If Trump nominated Gorsuch expecting his loyalty and support for continued expansion of executive power, I suspect he will be sadly disappointed if/when the Supreme Court squares off against overreach of executive power.
A Denver Post article provides a good overview of these and several other key Tenth Circuit Court cases, with handy links to the actual opinions. I recommend taking the newspaper’s commentary with a grain of salt, and studying the opinions for yourself. In one case, Justice Gorsuch dissented, justifiably, in my opinion, against a ruling in favor of Planned Parenthood; in another, Justice Gorsuch wrote a unanimous environmental ruling against an association of coal-producers, concluding that the association failed to prove harm. All are worth reading if you are interested in learning more about the newest Supreme Court Justice.
So far, Justice Gorsuch has had little opportunity to influence the Supreme Court. Before the recess, he weighed in on three cases, none of which seem significant to me, other than I agree with the Washington Post (WaPo) assessment that all three evidence his strong “originalist” and “textualist” leanings. It doesn’t necessarily follow that these cases prove conservative bias. Two of them did nothing to advance conservative causes, while the one that perhaps did (a ruling against an immigrant), resulted in Justice Gorsuch raising an objection IN FAVOR of the immigrant due to TEXTUAL issues. Again, I highly recommend following the links to study the actual opinions for yourself, rather than simply accepting the WaPo commentary.
My conclusion, therefore, about the worth of Neil Gorsuch is this: His book and court opinions together present a picture of a good man and a fine legal mind who is unlikely to allow his commitment to originalism to sway him away from the text simply to advance a conservative cause. His respect for the inviolability of life may deter him from pro-choice decisions, but never at the expense of the original Constitutional text. I believe Gorsuch was a good pick, for perhaps different reasons than evangelicals believe him to be a good pick, simply because I believe him to be a man of competence and intelligence and integrity and honor, with tremendous respect for the Rule of Law. He will be an asset to the Supreme Court and our judicial system. (I’ve no doubt Merrick Garland would have been just as wonderful, btw.)
Back to the original question. Is Neil Gorsuch worth the cost? So far I’ve presented the case for Justice Gorsuch’s value and worth. His value, in evangelical perception, lies in his belief in the inviolability of life. While I have my doubts about where he would land in a life vs. choice decision, I will concede that this is indeed his strongest character trait. Not much can be more important than prizing life that can only be granted by the Creator. But what is the cost? And does the cost outweigh the importance of the preservation of life agenda?
The Cost of a Trump Presidency
So many things could be said about what Trump has cost this country. With a 37% approval/55% disapproval rating, most people would agree the cost has been high: internal disunity, loss of international regard, escalation of N. Korean conflict, unchecked environmental destruction, further suppression/oppression of minorities, loss of morality and integrity, the list goes on and on. But most evangelicals would say that none of this has a higher cost than failure to preserve the lives of unborn Imago Dei, none of this is more important than standing for the most vulnerable, unborn Imago Dei.
In fact, most evangelicals would question the perception that the items in my list are FACTUAL, REAL problems. Which leads me to this: there IS one thing that is more important than standing for the unborn, and that is standing for Truth. If we don’t stand for Truth, then we are unable to sort fact from fiction, to make decisions based on verifiable facts and accurate perceptions. If we participate in the hypocrisy of liars, we lose our ability to perceive evil (see 1 Tim 4:2). If we don’t stand for Truth, we risk making faulty policy decisions about unborn Imago Dei based on erroneous perceptions, on faulty intelligence. If we don’t stand for Truth, we put ALL Imago Dei in eternal jeopardy.
The worst thing that Trump has done for this country is that he has proliferated an absolute and utter disdain for Truth, especially truth that does not advance his agenda. The worst thing that can be said about evangelicals right now is that most of them can’t see it.
Let me provide an example, Trump on Russia:
In this speech at a rally in West Virginia on August 3, 2017, Trump makes the statement (at 18:50), “The Russia story is a total fabrication.” This is a blatant lie.
On July 11, 2017, Don, Jr. posted a copy of a chain of emails that contained the following dialog:
Rob Goldstone (English publicist/journalist with ties to high level Russians): The Crown prosecutor of Russia met with his father Aras (Agalarov) this morning and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father. This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump – helped along by Aras and Emin (Agalarov)…
Don, Jr.: Thanks Rob, I appreciate that. I am on the road at the moment but perhaps I just speak to Emin first. Seems we have some time and if it’s what you say I love it especially later in the summer. Could we do a call first thing next week when I am back?
You can find a screenshot of that tweet here.
As was widely reported in the media, that dialog produced an actual meeting between Don, Jr., a few other Trump people, and Russian lawyer Natalia Veselnitskaya. I won’t dive deeper into that. We don’t know what exactly happened in the meeting, or what exactly Don, Jr. is guilty of, if anything. But it can’t truthfully be said that the Russian story is a “complete fabrication” when one’s own son is on record as having communicated interest in Russian intel on HRC.
He lies.
There are numerous other examples of Trump’s habitual and routine disregard for facts, but I won’t belabor this point. If you are a skeptical evangelical reading this, I strongly advise doing your own due diligence. Go to the primary sources, don’t rely on selective reporting of the facts by the media. Trump’s own words and tweets are a matter of public record as are a plethora of primary sources that contradict his statements.
This is the real tragedy, the real cost of a Trump presidency: the loss of objective truth as a value in our culture. And I do not think Neil Gorsuch, as worthy as he is, as valuable as he may be to the pro-life agenda, is worth the cost.