Neil Gorsuch on the Administrative State

Just heard that Neil Gorsuch has been confirmed by the Senate to the ninth seat on the Supreme Court.

Will the new Justice undermine the administrative state, what I’ve called our “speaking mostly in prose?” And will he try to return us to the poetry of the past, to the Constitution, as he seeks to promote his own originalist position?

Scalia and Gorsuch

We are told that Gorsuch in respect to the Constitution is an originalist much like Antonin Scalia whom he greatly admired and whom he is replacing. The two men would do nothing that was not allowed by the historical moment, time, and spirit of the Constitution. In a more conservative court Scalia would not have permitted abortion, same sex marriage, probably not assisted suicide. Will Gorsuch be with him with similar positions?

Emily Bazelon and Eric Posner have written (see The Government Gorsuch Wants to Undo) that Gorsuch’s being on the court would be bad not only for the administrative state but even worse for the country.

“Judge Gorsuch,” they write, “embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers.”

Their words are a clear statement that the rules and regulations that we are obliged to live with, and while mostly complaining about, see them as more important than, say the much ballyhooed separation of powers, for our country’s well being. Think clean air and water, previous existing medical conditions, the safety of the work place, not to mention the rights of minorities whose presence was not even acknowledged in the Constitution or in the earlier history of the country.

In other words Gorsuch would strongly oppose the administrative state, placing himself “smack” in the company of Steve Bannon, who has called any number of times  for its “deconstruction.”

Trump of course didn’t understand what he was doing by choosing Gorsuch. And as for Gorsuch himself, one might ask if he, for all his otherwise brilliance and readiness to serve on the court, really understands the weakness of the originalist position, his own and the one he so much admired in his predecessor Antonin Scalia. In a world, our world, where change is everywhere and where evolutionary science is to be looked to for guidance, more so than tradition and yes more so than religion, stuck no less than tradition in the past, and needing desperately (think priests in the  Catholic church and terrorists in ISIS) to change.

As Judge Gorsuch himself put it in a speech last year (Summer, 2016) the Legacy of Justice Scalia, the administrative state “poses a grave threat to our values of personal liberty.” It would seem therefore that Gorsuch would go along with the House bills that would undo so many of the rules we have come to live with, rules that in most instances do not take away our personal freedoms but enable us to better enjoy them. Think environmental protection, rules of the road, the rules of our games, both road and games entirely dependent on rules and referees, as so much else in our lives. And all that has been a good thing.

Nan Aron, the president of the Alliance for Justice, agreeing with Bazelon and Posner, has written  (see, Adam Liptak,  in a Times article,1/2017, In Judge Neil Gorsuch, an Echo of Scalia in Philosophy and Style,) that Judge Gorsuch’s stance on federal regulation was “extremely problematic” and “even more radical than that of Antonin Scalia —

“Not requiring courts to defer to agency expertise when an act of Congress is ambiguous,” she said, “will make it much harder for federal agencies to effectively address a wide variety of critical matters, including labor rights, consumer and financial protections, and environmental law.”

Scalia

Judge Gorsuch’s writing does differ, perhaps, from Justice Scalia’s in one major way: His tone is consistently courteous and mild, while some of Justice Scalia’s dissents were caustic and wounding. (See above, Adam Liptak.) This difference was what probably got Gorsuch through the confirmation process and the questioning by the Senators so easily.

Judge Gorsuch’s confirmation probably means that for the time being the court will return to a familiar dynamic, with Justice Anthony M. Kennedy, a moderate conservative, holding the decisive vote in many closely divided cases (again Adam Liptak). But most important Gorsuch’s confirmation will give added life to the originalist positions of the conservative Justices now on the Court, threatening what the more liberal and progressive courts have achieved up until now, especially if Trump goes on to choose still another originalist for a new SCOTUS vacancy.



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