Opinion of Neil Gorsuch

[TDAS04]

?

[TML]

Any judge who favors large corporations over ordinary Americans earns an automatic HP rating from me.

[Amenhotep Bakari-Sellers]

HP, we won't know really what these judges think until HR 1 or DC Statehood comes up and it challenges Citizens United

But, I think DC Statehood survives, Roberts WOULDNT have a problem with it but HR 1 goes against Citizens United

[Unconditional Surrender Truman]

HP, but unfortunately not the worst Trump judicial appointment.

[If my soul was made of stone]

By the standards of judges appointed by Republican presidents, FF. His Bostock opinion was very clever and enjoyable to read, and his bucking of "originalist" orthodoxy is a breath of fresh air.

By the standards of my own principles, HP. A legal nerd too caught up in wonkiness to have a clear moral imperative, and who too often errs on the side of odious right-wing economics.

[SnowLabrador]

Massive HP.

[MarkD]

By the standards of judges appointed by Republican presidents, FF. His Bostock opinion was very clever and enjoyable to read, and his bucking of "originalist" orthodoxy is a breath of fresh air.

By the standards of my own principles, HP. A legal nerd too caught up in wonkiness to have a clear moral imperative, and who too often errs on the side of odious right-wing economics.

Where did he do this?

Right there in Bostock v. Clayton County, in the second paragraph of the Court's opinion.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

Gorsuch clearly knew that, in 1964, Congress did not "imagine" the word sex would include the concept of sexual orientation. That means he was, in effect, rejecting the prospect that Congress's intended meaning should determine the meaning of the law they adopted. To an originalist, the "only" meaning is not the written word, but the lawmaker's intended meaning.

[Geoffrey Howe]

By the standards of judges appointed by Republican presidents, FF. His Bostock opinion was very clever and enjoyable to read, and his bucking of "originalist" orthodoxy is a breath of fresh air.

By the standards of my own principles, HP. A legal nerd too caught up in wonkiness to have a clear moral imperative, and who too often errs on the side of odious right-wing economics.

Where did he do this?

Right there in Bostock v. Clayton County, in the second paragraph of the Court's opinion.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

Gorsuch clearly knew that, in 1964, Congress did not "imagine" the word sex would include the concept of sexual orientation. That means he was, in effect, rejecting the prospect that Congress's intended meaning should determine the meaning of the law they adopted. To an originalist, the "only" meaning is not the written word, but the lawmaker's intended meaning.

I was thinking of originalism as a form constitutional, not statutory, interpretation.

[Ferguson97]

By the standards of judges appointed by Republican presidents, FF. His Bostock opinion was very clever and enjoyable to read, and his bucking of "originalist" orthodoxy is a breath of fresh air.

By the standards of my own principles, HP. A legal nerd too caught up in wonkiness to have a clear moral imperative, and who too often errs on the side of odious right-wing economics.

This is basically what I think.

[Amenhotep Bakari-Sellers]

If HR 1 or DC Statehood passed he is a No vote on both of them along with Alito and Thomas, we don't know on ACB or Kavanaugh, but those are 3 nay votes on both bills, since it violates Citizens United

Both bills just because Biden signs them aren't sure bets to sail this SCOTUS but DC Statehood has the easiest tome

[KaiserDave]

By the standards of judges appointed by Republican presidents, FF. His Bostock opinion was very clever and enjoyable to read, and his bucking of "originalist" orthodoxy is a breath of fresh air.

By the standards of my own principles, HP. A legal nerd too caught up in wonkiness to have a clear moral imperative, and who too often errs on the side of odious right-wing economics.

Where did he do this?

Right there in Bostock v. Clayton County, in the second paragraph of the Court's opinion.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

Gorsuch clearly knew that, in 1964, Congress did not "imagine" the word sex would include the concept of sexual orientation. That means he was, in effect, rejecting the prospect that Congress's intended meaning should determine the meaning of the law they adopted. To an originalist, the "only" meaning is not the written word, but the lawmaker's intended meaning.

Which is why originalism is a very faulty philosophy.

[Statilius the Epicurean]

By the standards of judges appointed by Republican presidents, FF. His Bostock opinion was very clever and enjoyable to read, and his bucking of "originalist" orthodoxy is a breath of fresh air.

Bostock was clever, yes, as a rearguard action by Roberts and Gorsuch to carve out a "religious liberty" exemption in order to allow faith groups to continue to discriminate against LGBT with constitutional protection.

[MarkD]

By the standards of judges appointed by Republican presidents, FF. His Bostock opinion was very clever and enjoyable to read, and his bucking of "originalist" orthodoxy is a breath of fresh air.

By the standards of my own principles, HP. A legal nerd too caught up in wonkiness to have a clear moral imperative, and who too often errs on the side of odious right-wing economics.

Where did he do this?

Right there in Bostock v. Clayton County, in the second paragraph of the Court's opinion.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

Gorsuch clearly knew that, in 1964, Congress did not "imagine" the word sex would include the concept of sexual orientation. That means he was, in effect, rejecting the prospect that Congress's intended meaning should determine the meaning of the law they adopted. To an originalist, the "only" meaning is not the written word, but the lawmaker's intended meaning.

Which is why originalism is a very faulty philosophy.

Thank you so much for this very detailed and thorough refutation of originalism. Now I clearly understand why I should oppose that philosophy, despite the fact that I've believed in it all my life.

[KaiserDave]

By the standards of judges appointed by Republican presidents, FF. His Bostock opinion was very clever and enjoyable to read, and his bucking of "originalist" orthodoxy is a breath of fresh air.

By the standards of my own principles, HP. A legal nerd too caught up in wonkiness to have a clear moral imperative, and who too often errs on the side of odious right-wing economics.

Where did he do this?

Right there in Bostock v. Clayton County, in the second paragraph of the Court's opinion.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

Gorsuch clearly knew that, in 1964, Congress did not "imagine" the word sex would include the concept of sexual orientation. That means he was, in effect, rejecting the prospect that Congress's intended meaning should determine the meaning of the law they adopted. To an originalist, the "only" meaning is not the written word, but the lawmaker's intended meaning.

Which is why originalism is a very faulty philosophy.

Thank you so much for this very detailed and thorough refutation of originalism. Now I clearly understand why I should oppose that philosophy, despite the fact that I've believed in it all my life.

Well let me elaborate. Intended meaning doesn't really exist does it? It's a nebulous idea, it's hard to tell, laws are drafted and written up by multiple people, each of whom may have unique intentions but share a common goal within the text. All originalism does is leave it up to judges what the "correct' original intent is, which returns us to mere subjectivity.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Gorsuch is probably the least terrible current conservative justice (philosophically/intellectually, not ideologically). I especially appreciate his jurisprudence on Native American cases. He's still awful.

By the standards of judges appointed by Republican presidents, FF. His Bostock opinion was very clever and enjoyable to read, and his bucking of "originalist" orthodoxy is a breath of fresh air.

Bostock was clever, yes, as a rearguard action by Roberts and Gorsuch to carve out a "religious liberty" exemption in order to allow faith groups to continue to discriminate against LGBT with constitutional protection.

But Bostock did not have that effect; Our Lady of Guadalupe School v. Morrissey-Berru and other cases from the tail end of the 2019 term did.

[Samof94]

He is surprisingly liberal on Native American issues.

[Statilius the Epicurean]

But Bostock did not have that effect; Our Lady of Guadalupe School v. Morrissey-Berru and other cases from the tail end of the 2019 term did.

Right, Bostock was a continuation of the Roberts Court's strategy on this.

[An American Tail: Fubart Goes West]

Gorsuch is probably the least terrible current conservative justice (philosophically/intellectually, not ideologically). I especially appreciate his jurisprudence on Native American cases. He's still awful.

By the standards of judges appointed by Republican presidents, FF. His Bostock opinion was very clever and enjoyable to read, and his bucking of "originalist" orthodoxy is a breath of fresh air.

Bostock was clever, yes, as a rearguard action by Roberts and Gorsuch to carve out a "religious liberty" exemption in order to allow faith groups to continue to discriminate against LGBT with constitutional protection.

But Bostock did not have that effect; Our Lady of Guadalupe School v. Morrissey-Berru and other cases from the tail end of the 2019 term did.

This, generally speaking. He is the perfect replacement for Antonin Scalia despite how much I hate the process by which Gorsuch got into the Court. He’s my favorite (if you could call it that) of Trump’s three appointees.

[MarkD]

By the standards of judges appointed by Republican presidents, FF. His Bostock opinion was very clever and enjoyable to read, and his bucking of "originalist" orthodoxy is a breath of fresh air.

By the standards of my own principles, HP. A legal nerd too caught up in wonkiness to have a clear moral imperative, and who too often errs on the side of odious right-wing economics.

Where did he do this?

Right there in Bostock v. Clayton County, in the second paragraph of the Court's opinion.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

Gorsuch clearly knew that, in 1964, Congress did not "imagine" the word sex would include the concept of sexual orientation. That means he was, in effect, rejecting the prospect that Congress's intended meaning should determine the meaning of the law they adopted. To an originalist, the "only" meaning is not the written word, but the lawmaker's intended meaning.

Which is why originalism is a very faulty philosophy.

Thank you so much for this very detailed and thorough refutation of originalism. Now I clearly understand why I should oppose that philosophy, despite the fact that I've believed in it all my life.

Well let me elaborate. Intended meaning doesn't really exist does it? It's a nebulous idea, it's hard to tell, laws are drafted and written up by multiple people, each of whom may have unique intentions but share a common goal within the text. All originalism does is leave it up to judges what the "correct' original intent is, which returns us to mere subjectivity.

First of all, I want to say that I am very, very impressed that you value objectivity, and are worried about the subjectivity that you think is inherent in an original intent approach to interpreting law. I absolutely believe that objectivity is the utmost important quality that we need in judges, especially Supreme Court Justices (who have the greatest degree of temptation to legislate from the bench).

Next, I want to point out that Judge Robert Bork -- probably one of the most prominent advocates and spokespersons for original intent jurisprudence -- said that on one occasion when he could not determine what a certain statute was intended to mean, he decided the statute was, to him, just plain meaningless. "The three-judge panel on which I sat split three ways. One of the judges took the position that we had to give the statute content because it was meant to have content. He proceeded to construct a fairly reasonable piece of legislation. I took the opposite stance, writing that 'when courts go beyond the area in which there is any historical evidence, when they create the substantive rules for topics ..., then law is made with no legislative guidance whatever. When that is so, it will not do to insist that the judges' duty is to construe the statute in order not to flout the will of Congress. On these topics, we have, at the moment, no evidence what the intention of Congress was. When courts lack such evidence, to 'construe' is to legislate, to act in the dark, and hence to do many things that, it is virtually certain, Congress did not intend. Any correspondence between the will of Congress in 1789 and the decisions of the courts in 1984 can then be only accidental.' " (The case was Hanoch Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984).) Keep that in mind when you claim that "intended meaning doesn't really exist."

Besides Judge Robert Bork, another federal judge who has strongly influenced me to accepting that originalism is superior to textualism is the famous Judge Learned Hand. On May 14, 1933, Judge Hand gave an address on nation-wide radio, CBS radio, that was titled "How Far Is A Judge Free In Rendering A Decision?" The speech was transcribed and reprinted in his 1952 book, "The Spirit of Liberty," a book I have in my collection.

In the address, Hand said that there are two schools of thought on the topic how much freedom do judges have in rendering decisions. He identified one of the schools of thought as "the dictionary school," and he did not have a label for the other school, but I call the other one the realist school. Hand said the dictionary school advocates the idea that judges should "observe very strictly what they consider the law, reading it as though it were all to be found in written words, and never departing from the literal meaning." "No matter what the result is, [the judge] must read the words in their usual meaning, and stop where they stop." But Hand said that idea is too extreme and is ultimately unworkable. Suppose, Hand said, that a doctor found an injured person lying in the street and, upon determining that person's medical need, induced bleeding in order to save the person's life. But suppose a stupid police officer witnessed it, arrested the doctor, and an equally stupid prosecuting attorney pressed a criminal charge against the doctor for violating a statute that prohibited blood-letting in the street. A sensible judge, one who does not adhere strictly to the dictionary school idea, would dismiss the charge against the doctor, because, the sensible judge would say, even though there is a statute with wording that literally covers the act that the doctor performed, the legislature that adopted the statute obviously meant to only prevent street violence, and not to prevent appropriate medical treatment by a licensed doctor. And, Hand added, "An obviously absurd extreme of that school [i.e., the dictionary school] was where a guilty man escaped, because the indictment left out the word 'the,' alleging that what he did was 'against the peace of state,' instead of 'against the peace of the state.' The statute had said that to convict a man the indictment must read like that, but the statute did not mean every syllable it contained." Another reason Hand gave for rejecting the theory of the dictionary school is because legislatures often do not and cannot write statutes that will cover, specifically, every situation that might come up. "All they have done is to write down certain words which they mean to apply generally to situations of that kind. To apply these literally may either pervert what was plainly their general meaning, or leave undisposed of what there is every reason to suppose they meant to provide for. Thus it is not enough for the judge to just use a dictionary. If he should do no more, he might come out with a result every sensible man would recognize to be quite the opposite of what was really intended; which would contradict or leave unfulfilled its plain purpose."

Hand said that the only merit behind the idea of the dictionary school is that its advocates want to prevent judges from usurping the power of legislatures. That is one thing that the dictionary school is correct to try to insist on.

Hand said the other school -- what I call the realist school -- advocates "that a judge ought to look to his conscience and follow its dictates; he ought not to be bound by what they call technical rules, having no relation to natural right or wrong." "They argue that a judge should not regard the law; that this has never been done in the past, and that to attempt ever to do it is an illusion. He must conform his decision to what honest men would think right, and it is better for him to look into his own heart to find out what that is." This school of thought gives judges "too much latitude."

Hand said, "I believe neither side is right." "[N]either [school] is really willing to apply its theory consistently, usually applying it when its interests lie along the path it advocates." To Hand, the correct theory is that judges should be dedicated to trying to understand the legislature's intended meaning with the words that they wrote. This is the true way to ensure that judges do not usurp the legislature's power. In the concluding two paragraphs of his address, he said,

But the judge must always remember that he should go no further than he is sure the [legislature] would have gone, had it been faced with the case before him. If he is in doubt, he must stop, for he cannot tell that the conflicting interests in the society for which he speaks would have come to a just result, even though he is sure that he knows what the just result should be. He is not to substitute even his juster will for theirs; otherwise it would not be the common will which prevails, and to that extent the people would not govern.
So you will see that a judge is in a contradictory position; he is pulled by two opposite forces. On the one hand he must not enforce whatever he thinks best; he must leave that to the common will expressed by the [legislature]. On the other hand, he must try as best he can to put into concrete form what that will is, not by slavishly following the words, but by trying honestly to say what was the underlying purpose expressed. Nobody does this exactly right; great judges do it better than the rest of us. It is necessary that someone shall do it, if we are to ever realize the hope that we can collectively rule ourselves. And so, while it is proper that people should find fault when their judges fail, it is only reasonable that they should recognize the difficulties. Perhaps it is also fair to ask that before the judges are blamed they shall be given the credit of having tried to do their best. Let them be severely brought to book, when they go wrong, but by those who will take the trouble to understand.

When Hand said do not go further than the legislature intended, a crucial part of what he meant by that is the judge must do that when identifying a major premise in the law he's interpreting. As Judge Bork taught me (when I read his famous book "The Tempting of America"), lawyers and judges have traditionally been taught, in law schools, to use the syllogistic structure of reasoning in order to interpret law. A syllogism, according to a dictionary I read a long time ago, is "a logical structure of formal argument that consists of a major premise, and a minor premise, and a conclusion that must be true if the premises are true." Bork explained that, in terms of applying originalism as a technique to interpreting the U.S. Constitution, "all that a judge committed to original understanding requires is that the text, structure, and history of the Constitution provide him not with a conclusion but with a major premise. That major premise is a principle or stated value that the ratifiers wanted to protect against hostile legislation or executive action. The judge must then see whether that principle or value is threatened by the statute or action challenged in the case before him. The answer to that question provides his minor premise, and the conclusion follows." And at another point in his book, Bork said (regarding interpreting both the Constitution and the statutes passed by legislatures)

The orthodox style [of legal reasoning] was to listen to a controversy between people, ascertain the facts, and then determine which side of the dispute was better supported by the relevant body of legal doctrine, whether that doctrine was expressed by judicial opinions [i.e., common law], statutes, or the Constitution. The lawyer, judge, or professor asked what words were in the text of these materials and what was the best interpretation of those words. The object was to frame a rule that was correct and that decided the case. A universal form of legal education and reasoning was to frame hypothetical situations to test the limits of the rule and to discover whether in such situations the rule embodied a sensible reading of the underlying text. This form of analysis makes sense only if the object is to carry the intended meaning of the legal text forward into the decision of real controversies.

[Italics added by me.]

[Del Tachi]

My least favorite of Trump's nominees, but still an FF

[The Dowager Mod]

This is one of those cases where I would have to self infract if I publicly stated my opinion.

[Grumpier Than Uncle Joe]

This is one of those cases where I would have to self infract if I publicly stated my opinion.

Serious question.  What rulings to date as a Justice that he has supported that have outraged you?  I don't follow the court much, but my own view of it is Trump's nominees are not even close to what he expected them to be.