Commentary Magazine

Originalism Goes to the Rodeo

AP Photo/J. Scott Applewhite

During his confirmation hearing yesterday, Judge Neil Gorsuch introduced the members of the Senate Judiciary Committee to Mutton Busting, a rodeo event which the jurist described as follows:  “You take a poor little kid, you find a sheep, and you attach the one to the other and see how long they can hold on.” With his fourth day of hearings still ahead, Gorsuch may just as well have been describing the confirmation process itself.

Confirmation hearings provide the Senate, which has a constitutional duty to provide advice and consent to the President on Supreme Court nominees, with an opportunity to ask the nominee probing questions about his judicial record and intellectual commitments. Moreover, they provide Americans as a whole, whose lives are directly affected by Supreme Court decisions, with an opportunity to learn about the nominee generally.

In Judge Gorsuch’s case, Senate Democrats have largely squandered these opportunities, preferring instead to conjure the ghost of Justice Scalia, to wave the bloody shirt of Merrick Garland, and to frame the whole of constitutional law as a struggle between the “big guy” and the “little guy.” Unedifying as much of this political rodeo has been, there have been a few moments of depth and authenticity that should be encouraging even to those skeptical of Judge Gorsuch’s candidacy.

Originalism has repeatedly taken center stage during the hearings, sometimes as an empty platitude and sometimes as a sneering byword for reactionism. To his credit, Judge Gorsuch has seized upon these moments to explain to the nation–in layman’s terms–exactly what the judicial method entails and why it is important to democratic governance. Originalism, he explained, is not a partisan ideology, but a method of interpreting the law that upholds two fundamental principles of justice: it constrains the personal discretion of judges and it affirms the due process of law.

As an originalist judge, Gorsuch explained yesterday, “you go back and you look at the evidence of what [the Constitution] was understood at the time to protect… No one is looking to take us back to the horse and buggy or quill pens or turn the clock back on anything. The point is to apply the law in a way that allows us to be able to say, as judges, [that the law is] not what we wish. It’s what the law was understood to mean. It has a fixed meaning.”

To Gorsuch, when a judge is called upon to interpret the Constitution, he must determine what the text would have meant to a reasonable reader at the time it was framed—what originalists term the “original public meaning” of the Constitution.

Throughout the hearings, Gorsuch noted that this method of constitutional interpretation serves a fundamental due process value, lending stability and determinacy to the letter of the law. Originalists believe that the law has a fixed meaning that does not change over time or at the whim of an individual judge. This means that people can determine what the law requires of them simply by looking at the text of a statute. This is important because litigants are judged for their past conduct. As a result, they should be governed by the legal standards that applied at the time of that conduct–not by what a judge subsequently thinks the law ought to have required their conduct to be.

After much talk of whether warrantless thermal imaging is an unlawful search under the Fourth Amendment even though the technology did not exist in 1789 (yes) and whether a fish is a corporate record under Sarbanes-Oxley (no), on Day Three the hearings finally addressed a serious critique (and misapprehension) of originalism head-on. Senator Dianne Feinstein asked Gorsuch whether originalism eviscerates the protection of women and gays under the Fourteenth Amendment because the framers of the Amendment did not intend to protect those groups. Gorsuch’s response was revelatory:

First of all, a good judge starts with precedent and doesn’t reinvent the wheel, so to the extent there are decisions on those topics, and there are, a good judge respects precedent. That’s the first point. [The] second point I would make is it would be a mistake to suggest that originalism turns on the secret intentions of the drafters of the language of the law. The point of originalism, textualism, whatever label you want to put on it–what a good judge always strives to do and what we all do–is to understand what the words on the page mean, not [to] import words that come from us, but [to] apply what you, the people’s representatives, the lawmakers, have done. And so when it comes to equal protection of the laws, for example, it matters not a whit that some of the drafters of the Fourteenth Amendment were racists–because they were–or sexists–because they were. The law they drafted promises equal protection of the law to all persons… I think that guarantee… is the most radical guarantee in all of the Constitution and maybe in all of human history. It’s a fantastic thing and that’s why it’s chiseled in Vermont marble over the entrance to the Supreme Court of the United States.

An originalist is not a medium, conjuring the secret, unexpressed intentions of the Constitution’s framers in a judicial séance. An originalist seeks to give effect to the original meaning of the text of the law, an approach most poignantly adopted by Justice Harlan in his blistering dissent in Plessy v. Ferguson, in which he wrote: “in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here… In respect of civil rights, all citizens are equal before the law.”

Gorsuch’s originalism should be heartening to every citizen because it prioritizes the will of the people, as expressed in the Constitution and in the laws of the land, over the will of the individual judge. Gorsuch’s workmanlike approach to judging is a natural consequence of this approach. To him, the federal judge is not a philosopher king who rules from the bench, remaking the laws in accordance with his own vision of the good. The role of the judge, Gorsuch has said pointedly and repeatedly during the hearings, “is to decide cases.”

Barring any ghastly surprises, Neil Gorsuch is likely to sail through the Senate. All he has to do during this week’s political rodeo is heed the Mutton Busting advice he gave his young daughters: HOLD ON.

Choose your plan and pay nothing for six Weeks!

For a very limited time, we are extending a six-week free trial on both our subscription plans. Put your intellectual life in order while you can. This offer is also valid for existing subscribers wishing to purchase a gift subscription. Click here for more details.

6 weeks free! Then 29.99/year

6 weeks free! Then 19.99/year