Neil Gorsuch: Originalism and Thinking Backwards in the Information Age

Federal appeals judge Neil Gorsuch, the current President’s Supreme Court nominee, is apparently a gentleman Coloradoan, cordial, cultured, profoundly conservative, an all around charming guy, a witty writer, a fly fisherman, and a man who espouses a curious judicial philosophy known as originalism. He shares this view with the late Justice Antonin Scalia, in which the Constitution is to be taken for what it meant, or appears to have meant, in the 18th century.

Republican hypocrisy over the obstructionist hijacking last year of President Obama’s Supreme Court nominee, Merrick Garland, not withstanding, revenge hungry Senate Democrats will probably not be able to dig up enough votes to block Gorsuch’s confirmation. Whereas Republicans refused to hold even confirmation hearings on Garland’s nomination, the Republican Senate majority will push the Gorsuch nomination through as fast as it can. But Gorsuch the jurist is not necessarily the same as Gorsuch the nominee. Even Slate considers him not to be a “villain.” But clearly, the moderate Merrick Garland’s views on civil rights, administrative regulations, and criminal justice would have served a progressive non-reactionary agenda far better at first glance than Gorsuch’s.

Judge Gorsuch’s originalism presents an insurmountable problem. Nina Totenberg on NPR quotes Justice Scalia on originalism: “The constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” Gorsuch put it this way last year, “judges should…strive to apply the law as they find it, focusing backwards, not forwards.” Totenberg adds their focus should be on “the original meaning of the constitution when it was written 230 years ago.” This would have to embrace the cultural realities of the time as well. Most of the framers were slave holders, women’s rights did not exist, child labor was the norm, and women’s suffrage was two centuries in the future.

From a New Mexican perspective, the timing of his nomination is such that Judge Gorsuch, and his literalist, backward looking judicial predisposition, will play a part in the most important Supreme Court case in our state’s recent history – Texas v. New Mexico and Colorado. Texas has sued New Mexico claiming we have short changed Texas of Rio Grande water as stipulated in the Rio Grande compact of 1938. A negative finding for New Mexico could ruin the state’s major agricultural producers of nuts, chile, onions, wine grapes, and dairy feed in the deeply Republican southern part of the state. How will an “originalist” point of view play out in a 21^st century issue concerning water in an era of climate change in a part of the nation that didn’t exist at the time the Constitution was ratified in June of 1788? It’s impossible to say for sure, but it doesn’t look good.

As history proves with many other Supreme Court nominees, there’s almost no way to predict how Gorsuch would vote in a highly complicated and emotionally charged case like Texas v. New Mexico. When President Eisenhower nominated conservative California Governor Earl Warren, for instance, he thought he was ensuring a right-leaning court. Instead the liberal Warren Court outlawed segregation in public schools, stopped gerrymandering of election districts, and defended the rights of the accused. When George H.W. Bush nominated conservative New Englander David Souter to the Supreme Court no one could have foreseen that he would become a reliable member of the liberal majority though the 1990s and the turn of the 21^st centuries. The same might come to be said of Judge Gorsuch. But more likely, if he follows form, he will end up a rigid, if charming, upholder of the ideological Right. Still, who’d be willing to place a bet? This is so because the court is more a place of ideas than of propaganda and political logrolling, even though it’s surely a place of ideology. At least people in the Judiciary tend to think more than scream and pout and defame. On the other hand, the careers of Justice Scalia and Justice Clarence Thomas have been stunningly predictable.

Gorsuch sided with Hobby Lobby’s religious opposition to the Affordable Care Act mandating insurance for contraception claiming that it infringed on the owner’s religious liberties. Gorsuch is regarded by the Right as a reliable “pro-life” and anti-choice champion, even to the extent of opposing voluntary euthanasia and physician assisted suicide. It’s been conjectured that Gorsuch might have a friendly disposition toward pro-environmental laws and regulations following his ruling on the side of Colorado in a case challenging Colorado’s renewable energy goals and programs as not being based on free-market interstate competition.

Perhaps the most interesting of Gorsusch’s decisions deals with something called, in administrative law, the Chevron Deference. This refers to a 1984 Supreme Court decision in Chevron v. the National Resources Defense Council, in which the court ruled that when it comes to ambiguous regulations and statutes the court would defer to the interpretation of the existent agency, giving even more political power to the sitting executive branch. In 1984, interpretations of clean air regulations in the Carter administration were challenged by a more conservative rendering by the Reagan administration’s EPA administrator Anne Gorsuch, Neil Gorsuch’s mother. Judge Gorsuch ruled against the Chevron deference last year in Guitierrez-Brizuela v. Lynch in a unanimous appeals court decision against an executive branch attempt to reject a circuit court’s interpretation of an immigration law, basically taking some power away from the executive branch and keeping it in the judicial branch. There’s little doubt that when suits are brought by environmental groups against the Trump EPA, and its administrator Scott Pruitt, the Cheveron deference will be at issue.

But the real question with Gorsuch is originalism and its push to interpret 21st-century laws and customs as they would have been interpreted in the culture and times of the signing of the U.S. Constitution at the end of the 18^th Century. This is a culture so different from contemporary America as to be all but unrecognizable. Just in terms of technology alone, the 18th century has nothing in common with our own. Around the time the Constitution was ratified, in 1788, the steamboat was invented. Ben Franklin deduced that lighting was a form of electricity. The navy was stocked with sailing ships. The mercury thermometer was invented, as were bifocals, flush toilets, and the piano.

Not only is it absurd on the face of it, but originalism leads to comically awkward judicial problems. If originalists are not to be a hypocrites, they must oppose deeply ingrained modern customs of government that are not mentioned in the Constitution – executive orders and executive privilege being chief among them. Even the traditional function of the judicial branch itself must be questioned as the Constitution makes no mention of the Supreme Court’s practice of “judicial review,” ruling on the constitutionality of laws and executive actions. That role and practice was invented by the Court itself in 1803 in a case known as Marbury v. Madison. Not only is judicial review not mentioned in the Constitution, the court granted itself that power after the Constitution was ratified. Judicial review is not a legal creature of the 18^th Century but the 19^th. How does originalism justify that awkward historical situation?

By trying to evaluate laws and regulations in the light of the 18^th Century, and in strict terms of the Constitution and the intention of its framers, originalists find themselves falling into the bog of literary criticism and one of that discipline’s cornerstone principles known as “The Intentional Fallacy.” It is a fallacy to think that one can “get into the minds” of authors, or framers, the intentional fallacy goes, because all one really can do is interpret what they think the authors were intending. Authorial intention the old saying goes in English departments is “neither available nor desirable.” The intention of the creator of a text is unavailable except in the text itself which is, by necessity, an object of the interpretation of its readers with all their biases and prejudices. Such interpretations happen without effort merely in the act of reading, but are “undesirable” if attempts are made to make them authoritative because then other interpretations are blocked, disallowed, or forbidden.

On the current Supreme Court, originalism does not hold sway. Justice Ruth Bader Ginsberg, for instance, believes the constitution is a living document that must adapt to the times. Justice Elena Kagan, as a former Solicitor General, places much emphasis on precedent and decided laws. Justice Sonia Sotomayor is a judicial realist concerned with how laws impacts the lives of real human beings.

So how will Judge Gorsuch rule in Texas v. New Mexico? One of the duties of the Supreme Court as stated in the Constitution is to decide disputes between the states. But as far as I can tell there is no mention of water in the Consitution, and Texas, New Mexico and Colorado didn’t exist when the constitution was ratified. Texas and New Mexico have been wrangling over the Rio Grande since the 1920s. Downstream Texas’s perennial complaint is that upstream New Mexico is somehow not allowing it to have its fair share of the river. The Rio Grande Compact of l938 tries to remedy the situation. One of the curious features of the agreement was that New Mexico would be held accountable for the Rio Grande only between the measuring station at Otowi Bridge below Los Alamos and Elephant Butte Lake about 100 miles from the Texas boarder. In that 100 mile stretch is some of New Mexico’s richest agricultural lands. The 2013 Texas v. New Mexico suit charged that New Mexico was pumping so much water to feed its agricultural heartland that it was diminishing the flow of the Rio Grande. The case arose after an agreement in 2008 between the Elephant Butte Irrigation District and the El Paso, Texas, Water Improvement District was challenged by the New Mexico attorney general, Gary King. That agreement had allowed New Mexico to pump underground water from wells developed between 1951 and 1978, but not later. One of the legal ironies of the case is that Texas water law does not hold that ground water and surface water are connected while New Mexico’s does. So Texas is basically suing New Mexico on geologic principles that its own laws do not accept as true.

I wonder how someone with an originalist judicial philosophy will frame such complexities, examine the data from that perspective, and justify his views, especially when two states hold two radically different legal interpretations of water and its geological and hydrological realities.