September 30, 2022

Neil Gorsuch has become the Supreme Court’s most unpredictable Justice

There’s something going on at the Supreme Court. No, it’s not the news that Ruth Bader Ginsberg has been hospitalized, or that John Roberts has become the new swing vote, although both developments are important.

But there’s another change that’s caught observers off-guard. Neil Gorsuch has become the court’s new wildcard.

Trump’s first appointee to the Supreme Court is making waves with his unpredictable decisions. He’s joined the liberal justices on several cases recently. For conservatives, that may trigger a sense of dismal deja vu, as visions of David Souter, Sandra Day O’Connor, Anthony Kennedy and John Roberts haunt our memories.

But Gorsuch is different. He’s not going soft – he just doesn’t see himself as a political figure. For him, the Supreme Court isn’t a legislature that votes liberal and conservative.

Instead, he’s following the text of the constitution, evaluating whether a law holds up to constitutional scrutiny, not whether it’s liberal or conservative. That’s what a judge should do.

A somewhat perplexed Slate Magazine noted:

…it can seem as if the justice simply courts chaos, a trait that does not fall along the usual ideological spectrum.

Anarchy, however, is not Gorsuch’s guiding principle. Or at least, it’s not the only one. Instead, the justice has followed the theories of textualism and originalism to new extremes. (Textualism means looking primarily at a statute’s plain text; originalism means looking at the Constitution’s original meaning.)

Here’s why that’s good news. While Chief Justice John Roberts has been nothing but timid when it comes to big decisions, Gorsuch doesn’t do political calculus.

Slate notes that Gorsuch and his generation of conservative judges “argued that decisions like Roe were wrong not because they intruded upon the democratic process, but because they strayed from the text and original meaning of the Constitution. To right the ship, judges should strive not for minimalism, but for absolute fidelity to the law, wherever it takes them. This approach empowered conservative judges to issue right-wing decisions just as sweeping and disruptive as any of Earl Warren’s.”

To overturn Roe, we need justices that are willing to do “sweeping and disruptive” things if the Constitution requires it.

I’ll take a Gorsuch over a Roberts any day.

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