At Dorf on Law, Eric Segall: Reviewing Justice Gorsuch's New Book: An Originalist Fantasy out of the Old West (reviewing [very harshly] Justice Gorsuch's book A Republic If You Can Keep It). From the introduction:
Justice Neil Gorush's new book "A Republic If You Can Keep It," isn't completely awful. Made up mostly of old speeches and essays, portions of his judicial opinions, and some new content, he provides a portrait of himself as that fishin'-lovin', down home, Western cowboy who just happened to graduate from an elite prep school in Bethesda, Maryland, and then Columbia, Harvard, and Oxford. But there are photos in the book of him fishing (with Scalia even), and he talks about how he and his wife raised two daughters "along with chickens, a goat, horses, a rabbit, dogs, cats, mice, and more in our home on the prairie." He "loves the West," but if you want to know much more about his personal life than that, well you will be disappointed. In this book, he has much bigger fish to fry, or cattle to lasso, or, well you get the idea.
Much of the book is about how originalism and textualism are great while living constitutionalism, purposivism, and pragmatism are bad. Throughout the book he discusses and provides excerpts from criminal law cases where he ruled for criminal defendants to show that even originalists and textualists can side with those accused of crimes. In this sense, and many others, he follows in the footsteps of Justice Antonin Scalia, who ruled for criminal defendants slightly more often than some might have thought likely given the rest of Scalia's priors. I believe Gorsuch does care about the rule of law when it comes to denying people their liberty, and this prior is of course consistent with his liberty-and-freedom-loving self-descriptions (if not with originalism). …
And from the critical parts:
Throughout the book, Gorsuch argues that originalism and textualism will keep judges in their place whereas living constitutionalism, purposivism, and pragmatism will allow unelected, life-tenured judges to impose their value judgments on the rest of us. But nowhere in the book does Gorsuch discuss the panoply of important decisions that so-called originalists and textualists Scalia and Thomas signed on to over the years that invalidated laws without any persuasive basis in originalist or textualist methodology–cases like Shelby County v. Holder, Citizens United v. FEC, and Seminole Tribe of Florida v. Florida. That would have been an interesting discussion.
More importantly, Gorsuch himself has voted to strike down important statutes in his short time on the Court without demonstrating or even trying to demonstrate … that original meaning required those results. In Trinity Lutheran v. Missouri, the issue was the constitutionality of a Missouri constitutional amendment prohibiting the giving of public funds to religious institutions. This amendment was originally passed in the late 19th century and over 20 states have similar ones. Neither the narrow plurality opinion, which limited its holding striking down the amendment to the specific facts of the case, nor Gorsuch's much broader concurring opinion, contain a word about the Free Exercise Clause's original meaning either at the time of the founding or in 1868 when the Clause was made applicable to the states through the 14th Amendment …
Posted at 6:14 AM