Uneasy Money

Neil Gorsuch, nominated this week to fill the vacancy on the Supreme Court left by the demise of Antonin Scalia, is in many respects an impressive Judge on the tenth circuit Court of Appeals, receiving accolades and encomiums not only from his ideological allies but also from legal experts and scholars on the opposite end of the ideological spectrum. Besides a J.D. from Harvard, Gorsuch has a Ph.D. in law from Oxford, having written his doctoral dissertation on assisted suicide and euthanasia, a work subsequently published by Princeton University Press. A scholarly judge, known for well-crafted and lucid opinions, he is likely, if confirmed, to leave a lasting mark on the Supreme Court and on American jurisprudence.

So I was really disappointed, though not really surprised, to find out that Judge Gorsuch, at his public introduction at the White House on Tuesday evening, felt compelled to indulge in an abject ritual obeisance to the prevailing right-wing populist legal ideology, delivering the following willfully ignorant, ahistorical, misrepresentation of the role of judges in our Anglo/American, common law legal system.

I respect, too, the fact that in our legal order, it is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge . . . stretching for results he prefers rather than those the law demands.

How someone trained in the law both at Harvard and Oxford could so flagrantly mischaracterize what it is that judges do – a mischacterization of the same ilk as John Roberts’s infamous comparison, as a nominee for Chief Justice testifying before the Senate Judiciary Committee, of judges to baseball umpires calling balls and strikes – when the entire Anglo-American legal system and the whole of its jurisprudence rests on the foundation of the common law, a law made in its entirety by judges deciding cases according to their understanding of the principles of justice and their understanding of how earlier judges had decided similar cases in similar situations, a law that evolved slowly as an organic, living tradition over countless generations and many centuries, is simply beyond my comprehension.

With all due respect to Judge Gorsuch’s impressive legal scholarship, I consider his statement to be a monumental denial of reality, orders of magnitude beyond denying climate change or even evolution. It is a denial of the obvious on the level of a Ph.D. mathematician denying that two plus two equals four. But so ferocious and so intransigent are the demands of current right-wing populist legal ideology that failure to deny obvious historical reality would be regarded as an unpardonable sin and a damnable heresy, more than ample grounds for being rejected to fill a coveted seat on the Supreme Court.

I can almost hear the howls of protest emanating from the Federalist Society, which, in its mission statement, solemnly asserts “that it is emphatically the province and duty of the judiciary to state what the law is, not what it should be.” But what exactly is the meaning of “the law” in that ever-so emphatic pronouncement?

“The law” could mean a specific statute, ordinance, enactment, provision, article, or rule, which, if duly enacted by an appropriate law-making body, has “the force of law.” Or alternatively, “the law” could mean the entire body of law under which a rule of law is said to be in effect. Whether a specific statute, ordinance, enactment, provision, article, or rule exists is a purely factual question, and, for the most part, not a controversial one. When a question of law becomes controversial, it is rarely because people have forgotten the existence of a relevant statute, ordinance, or rule, of whose existence they must be reminded by a judge with a superior memory. Rather the question of law arises, because it is not clear which one of a number of alternative, potentially applicable rules should govern the outcome of the case at hand. And that question of law can rarely be answered – certainly not satisfactorily answered – simply by reminding the litigants that the law says such and such and so and so.

The real challenge confronting the judge – especially an appellate judge – is to determine which of the alternative, potentially applicable rules should determine the outcome of the case. And to answer that question, a judge can’t just look up what the law says, the judge has to consider how the entire legal system, including not just the explicit rules, but all the relevant previous judicial decisions and all the principles embodied in those decisions, comports with the decision that must be rendered. The judge deciding the case has to figure out how to make a ruling that best fits in with all those previous decisions and all their underlying principles. It is that best decision which is what “the law,” considered as an overall system, requires. But if that is what a judge is trying to do, it is simply nonsense – as in absurd and incoherent – to assert that the judge is stating “what the law is, not what it should be.”

To be sure, judges sometimes have to make decisions with which they are personally uncomfortable, judges never being possessed of unlimited discretion to rule as they please. But judging means a weighing of arguments and of conflicting values to arrive at the best possible decision under the circumstances — the decision most consistent with the entire system of law, not just particular statutes, enactments or decisions.

For example, Korematsu v. United States has never formally been overruled or vacated by the US Supreme Court. Under the absurd doctrine of the Federalist Society, that abominable decision, no less than the admirable Marbury v. Madison, is “law.” But under any defensible understanding of what the US legal system actually entails, Korematsu is not law, even though it has, regrettably, not yet been formally expunged from precedents of the Supreme Court. One would hope that Judge Gorsuch will be given an opportunity to opine on the legal status of Korematsu and perhaps other legal abominations which are still available to be invoked as precedent, when he testifies before the Senate Judiciary Committee.