Trump chooses a supreme reactionary

February 8, 2017

Aaron Amaral breaks down the frighteningly right-wing history and ideas of Neil Gorsuch, Trump's nominee to become a Supreme Court justice.

DONALD TRUMP is threatening the country with another nominee of mass destruction--this time by nominating federal appellate Judge Neil Gorsuch to fill the seat on the U.S. Supreme Court vacant since the death of arch-reactionary Antonin Scalia.

The New York Times ran a graphic placing Gorsuch along an ideological spectrum to the right of Scalia--and thus far to the right of current Supreme Court conservatives John Roberts and Samuel Alito. Unfortunately, this is not fake news.

On the same day as the Times graphic, the Daily Mail--a British tabloid that has intimate knowledge of the most reactionary public figures--ran an article reporting that Gorsuch had "founded and led a student group called the 'Fascism Forever Club'" while at his ultra-elite Washington, D.C., prep school.

A number of articles soon appeared, led by the bilious New York Post, that tried to minimize this report, noting that Gorsuch's "Fascism Forever Club" was not real, but rather intended as a joke.

Even if we believe the reporting from Rupert Murdoch's right-wing tabloid, it's not at all clear how a fascism club, fake or otherwise, is funny. Perhaps, like Gorsuch, one would have had to make his way through the sheltered halls of Georgetown Preparatory School, Columbia University, Harvard Law School and Oxford University to understand the humor.

Supreme Court nominee Neil Gorsuch addresses reporters, flanked by Donald Trump
Supreme Court nominee Neil Gorsuch addresses reporters, flanked by Donald Trump

More likely, the joke is on those of us facing a future of decades with Justice Gorsuch, now aged 49, as a fixture on the nation's highest court.

GIVEN HIS background, it isn't surprising that Gorsuch has been hailed--or should we say heiled?--by the right-wing establishment as a "worthy heir to Scalia's legacy."

Last year, Gorsuch delivered a lecture eulogizing Antonin Scalia--he admitted to breaking down into tears at the news of Scalia's death--and expounding on the merits of Scalia's "textualist" and "originalist" approaches to the U.S. Constitution.

It's worth examining Gorsuch's explicit and articulate defense of these legal approaches to understand just what we might be in for.

Originalism been described as the judicial philosophy "that the Constitution should be interpreted in accordance with its original meaning--that is, the meaning it had at the time of its enactment," as the Washington Post put it, even if modern circumstances change.

As Gorsuch explained in his Scalia lecture:

First consider the Constitution. Judges, after all, must do more than merely consider it. They take an oath to uphold it. So any theory of judging (in this country at least) must be measured against that foundational duty. Yet it seems to me those who would have judges behave like legislators, imposing their moral convictions and utility calculi on others, face an uphill battle when it comes to reconciling their judicial philosophy with our founding document.

What Gorsuch and other originalists never mention is that some notable aspects of the "original meaning" of "our founding document" were the enshrinement of slavery and limiting the vote to white property holders, ensuring that only approximately 6 percent of the population could cast a ballot at the time.

In his lecture, Gorsuch went on to say, "We live in an age when the job of the federal judge is not so much to expound upon the common law as it is to interpret texts--whether constitutional, statutory, regulatory, or contractual."

In the U.S., "common law" is less directly tied to medieval English customary law and more tied to a legacy of popular and democratic rights--even if those rights were quite limited and contradictory when it came to women, African Americans, Indigenous people and others. To locate the source of judicial authority in the text of the Constitution, and not in this popular common law legacy, has an evident and explicit anti-democratic meaning.

Common law in the U.S. arises out of the 17th century revolutionary struggles in England and is manifest in the rights claimed by the settlers of that era--often religious dissidents funded by a rising capitalist class--not least against the absolute power of the monarchy.

The Constitution, on the other hand--the ultimate source of authority for originalist textualists like Scalia and Gorsuch--is a document whose explicit purpose was to curb democratic rights, guarantee the economic "rights" and political power of slaveholders and codify our system of government to separate state powers, to as great an extent as possible, from popular control. This included placing enormous power in an unelected judiciary.

THE ORIGINALIST textualism that Gorsuch shares with Scalia leads to conclusions that are deeply troublesome.

Soon after the announcement of his nomination, Trump tweeted a photograph of Gorsuch praying with Trump and Vice President Mike Pence, along with Scalia's widow and Scalia's son, Father Paul Scalia, an ultra-orthodox Catholic priest from the Order of Opus Dei. Thus, it isn't surprising that the matter which has been subject to the most commentary since Gorsuch's nomination is the role of religious freedom.

The so-called Hobby Lobby case came up through Gorsuch's 10th U.S. Circuit Court of Appeals. The issue in the case involved whether a company owned by Christian fundamentalists would be required to meet obligations under that portion of the Affordable Care Act that calls for employers' health care plans to cover contraception.

While the case was pending before the U.S. Supreme Court, summarized the company's position this way: "I don't have to provide my employees with access to birth control--even if it is the law--because I am expressing my religious freedom."

In his concurrence with the majority decision of the 10th Circuit, Gorsuch wrote:

All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Green family members [owners of Hobby Lobby] are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case.

On this logic, Gorsuch argued for the rights of individuals to opt out of federal mandates based on sincerely held religious beliefs. Notably, this went further than the Supreme Court, which ultimately upheld only the right of corporations to opt out of such mandates.

GORSUCH'S TEXTUALIST originalism extends to his position on the deference that the courts owe to administrative agencies. There is a longstanding legal precedent--known as "Chevron deference," after the original case--that gives administrative and regulatory agencies scope to interpret their authority to address underlying ambiguity in statues and laws.

Agencies like the Environmental Protection Agency--once headed and almost destroyed by Gorsuch's mother, Anne--the Occupational Safety and Health Administration, and the Security and Exchange Commission, which are tasked with regulating corporations, rely on this deference in the process of agency rulemaking or in administrative decision-making.

Gorsuch's logic in his opinion in Gutierrez-Brizuela v. Lynch would gut this deference and return us to a state of play last seen at the turn of the last century--the golden age of corporate dominance in the rule of law. In this case, Gorsuch wrote:

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...permit[s] 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.

As of now, there is very little certainty about how the Democratic Party intends to handle the Gorsuch nomination. The party leadership is weighing the extent to which it must be accountable to a burgeoning mass movement over which it has little direct control--and which represents a threat to its ostensible raison d'être as the supposed party of the people.

Politically, they've been handed a golden ticket to justify opposition. Given the world-class obstructionism of Senate Republicans when Obama nominated "centrist" Merrick Garland for Scalia's seat, one might think that Senate Democrats had learned at least one lesson: Do unto others as they would do unto you.

Yet any strategy that relies upon Senate Democrats and Senate rules to act as a bulwark against the ever-growing reactionary character of the Supreme Court is both historically ignorant and likely to end in failure. It's the mass mobilizations that have swept the country since Trump's inauguration that show an alternative.

The Fascism Forever Club isn't the only damning detail about Gorsuch to emerge from one of his old school publications. His 1988 Columbia University yearbook picture is captioned with a quote from the famed Republican war criminal Henry Kissinger: "The illegal we do immediately. The Unconstitutional takes a little longer."

Thirty years later is indeed "a little longer" but now Neil Gorsuch stands poised to become one of the arbiters of what qualifies as Constitutional--unless our side is able to force a stop to his nomination--and challenge a profoundly undemocratic system that nurture people like Gorsuch from prep school to the high court.

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