In The Atlantic, Jeffrey Rosen: A Jeffersonian for the Supreme Court. From the introduction:
Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, is one of the most respected conservative legal intellectuals on the federal bench. Like Justice Antonin Scalia, he has the ability and the ambition to lead America’s constitutional debate by following a clear vision of textualism and originalism, based on the premise that judges should separate their political from their constitutional conclusions.
But unlike the Hamiltonian Justice Scalia, the more Jeffersonian Gorsuch seems more willing to return to constitutional first principles and to question the constitutional underpinnings of the post-New Deal administrative state. At the same time, he clerked for Justice Anthony Kennedy and seems more likely than any other nominee to persuade Kennedy to vote with the conservatives rather than the liberals as long as he remains on the Court. And his record suggests a willingness to transform the law and to enforce constitutional limitations on the excesses of Congress and the president. For all of these reasons, Gorsuch’s appointment gives conservatives reason to celebrate, and liberals reason to fear, that Trump couldn’t have made a more effective choice.
There’s no doubt, however, that the principled Gorsuch would be willing to rule against Trump or a Republican Congress if he felt they exceeded their constitutional bounds—if Trump issued executive orders that clashed with the text of federal immigration laws, for example, or if Congress passed laws banning abortions that don’t involve crossing state lines that exceeded its power to regulate interstate commerce. As Gorsuch said at the White House while accepting Trump’s nomination, “a judge who likes every outcome he reaches is very likely a bad judge.” And because of Gorsuch’s appealing and collegial personality and temperament, he could certainly join with the liberal and conservative justices on the Roberts Court to form a united front against clear and present threats to the First Amendment or to the constitutional order. At a time when progressives are rediscovering the virtues of Madisonian checks on populist excesses and federal power, Gorsuch may be precisely the kind of bipartisan Jeffersonian justice the country needs.
Posted at 6:57 AM