Neil Gorsuch and Originalism

Neil Gorsuch and Originalism


Jake Lee, Guest Contributor

The President used his usual superlatives to describe the man he selected to fill the vacancy left by the late, great Justice Scalia. Neil Gorsuch had the most “brilliant mind.” His academic credentials were “as good as [he’d] ever seen.” He simply was “the best judge.”

As I watched the nomination of Neil Gorsuch to the nation's highest court, I couldn't help but wonder what our President thought he was getting into. Throughout his campaign, Donald Trump displayed a lack of legal and constitutional understanding. After reciting the prose obviously written by someone else, Trump would regularly go off the cuff. In these instances, he often placed judges on a conservative-liberal ideological spectrum. He appeared to see the position of Supreme Court Justice as a pseudo-legislator, one who would consciously shift the balance towards the conservative side of “hot-button” issues. 

This is a common misunderstanding. While a judge’s decisions may regularly result in conservative outcomes, the idea that a judicial philosophy is perfectly analogous to a political philosophy is wrong. A justice should not legislate from the bench and anyone who does is usurping their power.

After doing some research and reading through some of his opinions, I have come to the conclusion that Neil Gorsuch is going to pick up right where Justice Scalia left off. Gorsuch does not make a decision based on the outcome, but he makes his decision based on the text of the Constitution. In fact, Judge Gorsuch regularly renders decisions which warrant outcomes that he, himself, doesn’t even like. Such a sign is a great indication of one who makes decisions based on the Constitution and not on outside or personal influence. This judicial philosophy is often called originalism or textualism.

Just last year Gorsuch described this approach, “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 (A.M. v Holmes, 2016).” In fact, both Scalia and Gorsuch have written a number of decisions that resulted in liberal outcomes.

While an originalist approach of interpretation may appear like a no-brainer, the position of Supreme Court Justice is surrounded by a fury of outside influence. Although the public reaction to their decisions must weigh heavily, the national, political consequences are even larger. Not only are they battling with one another after oral argument, they then have to continually separate what is “right” from what is constitutional. As those behind the bench falter and lose their grip on the text of the Constitution, they open the door to a political agenda which will almost always feed the unquenchable thirst of governmental growth.

On the other hand, if all justices on the Court were to simply interpret the Constitution as it was written, we would be living in an entirely different country. The progressive tidal wave would be no match for a solid original understanding of the Constitution. The Obamacare mandate would have never passed, nor would Roe v Wade, have gained any traction. As a justice strives to hold him or herself accountable by shifting the focus away from themselves and away from the end result, they allow the Constitution to go to work in starving the progressive agenda. This sure approach steadily aids a return to the government our Founders crafted.

In the last month I have been frequently asked if I support the selection of Neil Gorsuch to the Supreme Court. Wondering if I am frustrated by the fact that none of my family members on Trump's list of potential nominees received the nomination, their inquiry is normally accompanied with a subtle grin. Perhaps I should be frustrated, but the reality is that Gorsuch is such a spectacular choice that I have no room to complain. He has a great track record and displays a consistent and fair interpretation of the Constitution. At his nomination, Gorsuch stated, “You’ve entrusted me with the most solemn assignment. Standing here in a house of history, and acutely aware of my own imperfections, I pledge that if I am confirmed, I will do all my powers permit to be a faithful servant of the Constitution and laws of this great country.” Ironically, almost every Supreme Court nominee has recited a similar variation of these words. But Gorsuch is one of the few that have the record to back it up.

This is why Gorsuch was selected and this is why he will make a great Supreme Court Justice.

A.M. on behalf of her minor child vs. Holmes. US Court of Appeals, Tenth Circuit. 2016. Print.

Jake Lee currently works as a legislative assistant for Office of Governor Herbert in Utah. He recently graduated from Brigham Young University with a degree in Political Science and an emphasis in Political Philosophy. Having been the grandson of the late Solicitor General Rex Lee, nephew of Senator Mike Lee, and a son of Utah Supreme Court Justice Thomas Lee, he has grown up around the law and is passionate about the U.S. Constitution. He plans on attending law school this fall and to eventually practice criminal law as a prosecutor.

Prior to his current position, Jake has worked as a translator for a local criminal and immigration law firm and interned for Senator Ted Cruz in his Washington DC office. While earning his undergraduate degree, he was published in several articles by Studies Weekly, a magazine-textbook for grades K-6 and worked as a linguistic research assistant.

In 2016, Jake served a dual-role position as the Utah Millennials for Ted Cruz Chair and the Utah College Director helping Senator Cruz reach his second highest vote percentage of 69%. Jake was later elected as a state delegate from his local district and would eventually be elected as a national delegate representing the state of Utah.

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