Neil Gorsuch and the original injustice

April 7, 2017

As the Senate heads toward a vote on Trump's nominee for Supreme Court justice, Mukund Rathi asks whether the real outrage is his legal views or the system itself.

NEIL GORSUCH, Trump's nominee for the U.S. Supreme Court, is expected to be confirmed by the Senate in a narrow vote that will likely take place on Friday. A Senate showdown on Thursday removed a procedural method that Democrats, as a minority in the Senate, hoped to use to block the confirmation, as Republicans did during the Obama administration.

If the Senate installs Gorsuch on the Court, we will all suffer the irony of yet another longtime enemy of the oppressed holding the title of "Justice"--and holding it for decades to come since he is relatively young at 49 years old.

Structurally, Gorsuch will return the Court to a 5-4 ball game, with conservatives and liberals each with four justices in their camps, and Anthony Kennedy--who is right of center, but considered more moderate than his right-wing brethren--as the swing vote on many cases.

As an individual justice, Gorsuch will be an advocate for right-wing politics on the Court, obscured in the Trojan horse of "originalism," as the judicial doctrine is known. In many ways, the Supreme Court will be reset back to the period before Antonin Scalia, also a devout originalist, died in 2016.

Neil Gorsuch speaks at a press conference while Trump looks on
Neil Gorsuch speaks at a press conference while Trump looks on (White House)

However, many Democrat leaders and liberal pundits who have been sounding the alarm bells about Gorsuch specifically are sorely mistaken in their view of him and his ilk as stains on an otherwise glorious and impartial Supreme Court and legal system.

This kind of reverence for the institutions of the Washington political system isn't new or surprising coming from Democrats, but the Left--those who are part of an actual progressive resistance to Donald Trump--shouldn't fall into the trap.

While Gorsuch's legal record is of upholding oppression, it is also completely loyal to the legal system as it has developed in the U.S. over centuries. That system is ultimately an enemy of the working class and the oppressed, whether the legal doctrine invoked is reactionary originalism or something more liberal.

Our side can win legal victories--witness, for example, the federal judges who blocked Trump's Muslim travel ban--but it is almost always because those at the top feel the pressure of struggle from below.

THE LEGAL philosophy of originalism calls on judges to interpret the Constitution through the lens of those who originally wrote the document--that is, slave holders, mercantilist traders and the political leaders of the bourgeois revolution in the U.S. The companion philosophy of "textualism" holds that judges should interpret laws strictly based on the words in their texts--and if necessary, on the intent of those who wrote them, which invariably means leaders of the two mainstream, pro-corporate parties.

Genuinely or not, Gorsuch claims that these are the only methods that ensure judicial modesty, including respect for the oppressed:

In my decade on the bench, I've tried to treat all who come before me fairly and with respect and afford equal right to poor and rich...My decisions have never reflected a judgment about the people before me, only a judgment about the law and the facts at issue in each particular case. A good judge can promise no more than that, and a good judge should guarantee no less, for a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for policy results he prefers rather than those the law compels.

Judicial modesty may sound friendly to the left's principles. "Given the choice between popular democracy and empowered justices, the left should always be more partial to the former," Matt McManus wrote at Jacobin.

But Gorsuch's claim that originalist judgments separate "the law" and "the people before [him]" is nonsense--because originally, the law was openly and actively hostile to oppressed people before it. As liberal legal scholar Erwin Chemerinsky explains, under a consistent application of "originalism":

No longer would the Bill of Rights apply to state and local governments. No longer would there be protection of rights not mentioned in the text of the Constitution, such as the right to travel, freedom of association and the right to privacy. This would mean the end of constitutional protection for liberties such as the right to marry, the right to procreate, the right to custody of one's children, the right to keep the family together, the right of parents to control the upbringing of their children, the right to purchase and use contraceptives, the right to abortion, the right to refuse medical care, the right to engage in private consensual homosexual activity. No longer would women be protected from discrimination under equal protection.

Historically, all of these rights departed from the original meaning of the Constitution and its amendments. Given their length of time on the books, even originalists are unlikely to revisit them, due to judicial respect for "precedence," or the history of legal decisions.

BUT GRUDGING acceptance of rights established by past legal decisions doesn't mean respect for their being exercised going forward.

In the case of abortion rights, for example, as Michelle Farber wrote at, "[t]he greater threat that Gorsuch poses is not in overturning legal abortion entirely, but in adding his vote to a conservative majority in favor of further chipping away at abortion access."

The legal standard for abortion restrictions, under the Supreme Court's 1992 decision in Casey v. Planned Parenthood, is that they must not place an "undue burden" on women's access. Since the phrase is vague and legally defined only by further Court decisions, leeway is given to lower courts to interpret what is an "undue burden"--and to state legislatures to hack away at access to abortion.

This leeway in interpreting vague phrases, which is necessary in all areas of the law, is one of many ways that originalism and textualism necessarily fail as guarantors of objectivity, as Matt McManus explains:

In the law, the only place where we can potentially speak of literal meaning is where the text appeals to strong referents: for instance, the stipulation that one must be over 35 to be president. It's quite another matter when a word like "speech" is the object of interpretation.

Though Gorsuch has little history of ruling on abortion restrictions as a judge, there is plenty to suggest in his record as an attorney that he is hostile to access--and so he would likely use judicial leeway against women by upholding restrictions.

Of course, Gorsuch would respond to any conclusions about his history as a lawyer that he was merely working for a client--as when he justified the use torture for the Bush administration--but that he would be objective from the bench as an originalist.

Even setting aside what it means to be loyal to the Constitution's original meaning, the recent history of originalism as applied by Supreme Court justices suggests objectivity isn't a requirement. Consider, for example, how well Scalia hid his right-wing politics (spoiler alert: he didn't) when he dissented from the Court's 2012 decision to strike down parts of Arizona's racist anti-immigration law in Arizona v. United States:

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country's illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.

LIBERAL COMMENTATORS have rightly exposed the hypocrisy and injustice of originalism from the likes of Scalia and Gorsuch. But their own view of a legal system where progressive principles are at home is flawed.

For example, civil rights lawyer Kristen Clarke believes that "Mr. Gorsuch is not somebody who views the courts as a place for victims of discrimination to really vindicate their rights"--whereas she sees the legal as a level playing field for our side:

Throughout our nation's history, when we look at the role of the Supreme Court, this has been the place where we have seen rulings that have helped to transform our nation and breathe life into the Constitution's text. This is the place where the battle against school desegregation played out.

But the historical reality is that the battle for civil rights for African Americans began with mass mobilizations organized by radical individuals and organizations. The part of the battle in the courts was, as it always has been and still is now, an uphill battle.

More importantly, success or failure is inseparable from the state of our broader struggle. One example of this is what may be Gorsuch's most infamous judicial opinion, which Senator Al Franken grilled him about at his confirmation hearing: the case of the frozen trucker.

IN JANUARY 2009, truck driver Alphonse Maddin stopped briefly in Kansas on his way to Illinois, but the brakes on the trailer froze before he got back underway. His employer told him to wait with the commercial cargo--despite -27 degree temperatures--until a repair unit arrived. Maddin recounted the harrowing experience:

As I sat there physically suffering in the cold, I started having thoughts that I was going to die. My physical condition was fading rapidly. I decided to try to detach the trailer from the truck and drive to safety. When I stepped out of the truck, I was concerned that I may fall, because I was on the verge of passing out. I feared that if I fell, I would not have the strength to stand up, and would die. I walked to the back of the trailer to place a lock on the cargo doors. The distance that I walked to the back of the trailer seemed like an eternity, as my feet absolutely had no feeling at all.

Maddin detached the trailer and drove to safety--and his bosses at TransAm Trucking fired him for it. Maddin went to court to dispute the firing and repeatedly won, while TransAm continued to appeal. Sitting on the 10th U.S. Circuit Court of Appeals in 2016, Gorsuch was the only judge along the way who ruled against Maddin, dissenting from the majority's favorable decision.

The legal question was whether a statute that protected employees from being fired for refusing to "operate" a dangerous vehicle applied to Maddin's situation. More specifically, does "operate" only mean "drive" or does it include everything an employer instructs an employee to do with a vehicle, such as waiting with the trailer in Maddin's case?

The majority of judges went with the latter interpretation, but Gorsuch fell closer to the former. In his dissent, he wrote:

The trucker in this case wasn't fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly--and by everyone's admission--permitted him to sit and remain where he was and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not.

Gorsuch used the Oxford English Dictionary to justify his definition of "operate," an arbitrary choice limiting the meaning of the word to "drive" in this case. This exposes the failure of textualism to be objective when it comes to interpreting vague phrases.

Perhaps the thing for a liberal judge to do in this situation would be to pick a definition of "operate" that would be expansive in protecting workers from retaliation. The majority of judges did so, but only by justifying it with reference to the text of the statute that declared a purpose of protecting commercial vehicle operators.

Fundamentally, they agreed with Gorsuch's opening argument that objective loyalty to the law trumps subjective ideas of fairness: "It might be fair to ask whether TransAm's decision was a wise or kind one," Gorsuch wrote. "But it's not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one."

This begs the question: What if the statute didn't exist? What if there was no statute containing the protective text that was held to cover Maddin's situation? Indeed, Gorsuch believed this was the case.

The reality is that if the statute didn't exist, the majority would be bound to rule against Maddin. It would be a legal scandal to openly disregard existing law (or the lack thereof) and rule based on the fairness of the situation alone. The ruling would be immediately overturned, and every law student would be taught this as an example of what judges shouldn't do.

These are Gorsuch's words, but without the statute, the judges who ruled for Maddin would be compelled to agree: "[T]here's simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid....And it isn't our job to write one."

THIS IS why it's inconsistent for liberal commentators like Paul Rosenberg at Salon to condemn Gorsuch's legal philosophy, but not the legal system itself:

A black-robed judge in the warm comfort of his chambers decides that a trucker should have meekly accepted freezing to death (alone in his truck, in midwinter, in the middle of the night), and there's nothing anyone can do about it. That is conservative jurisprudence in a nutshell....The law was not written for lawyers, but for the whole of the people. If you think the law condemns Alphonse Maddin to death or dismissal, then the law is no place for you.

The problem is the law could very well have condemned Maddin--as it has done to many oppressed people, including to death--if not for the existence of the statute that the majority of judges referenced.

How statutes and laws are written depends on the state of the class struggle. Good laws and just judicial decisions are generally dependent on struggle and political sentiment from below.

The law is inextricably linked to the rest of the bourgeois political system in the U.S., which we know is stacked against our side. As Rob Hunter summarized at Jacobin:

It is not a matter of opposing Gorsuch because of his originalism--still less of defending the judiciary from capture by conservative jurisprudence. It is a matter of resisting the judiciary itself as a reactionary institution. It is about focusing on the Court, not on Trump's pick. A movement of mass opposition and disruption must target institutions rather than individuals, power rather than personalities.

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