In Honor of Justice Gorsuch: A Parable of Judicial Originalism

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In Honor of Justice Gorsuch: A Parable of Judicial Originalism

A rose is a rose is a rose”

–Gertrude Stein, Sacred Emily

A rose by any other name would smell as sweet”

– William Shake­speare, Romeo and Juliet

With Jus­tice Gor­such finally being con­firmed to the Supreme Court last week, I wanted to take a moment to look back at the con­fir­ma­tion process and hope­fully help explain why putting him on the Court was worth all the par­lia­men­tary maneu­ver­ing required and why it’s such a good thing for the rule of law. Much of the con­fir­ma­tion hear­ing was devoted to a dis­cus­sion of the “Frozen Trucker Case” (TransAm Truck­ing, Inc. v. Admin. Review Bd., U.S. Dep’t. of Labor), in which then-​Judge Gor­such dis­sented in a deci­sion to over­turn the company’s deci­sion to fire a dri­ver for vio­lat­ing com­pany pol­icy. Since this case, and par­tic­u­larly Judge Gorsuch’s dis­sent, hinged on the con­cept of orig­i­nal­ism, I present this story.

Once upon a time, there was a town whose leg­is­la­ture passed a law, signed by the mayor, that gave a tax deduc­tion to every home­owner who planted rose­bushes in their front yard. For the pur­poses of our story, it doesn’t really mat­ter why they did this, only that the law was con­sis­tent with the town bylaws and was legally enacted. For the first few years, sev­eral home­own­ers took advan­tage of the tax break and the town derived ben­e­fit from the law by being able to mar­ket them­selves as “The Town of Roses” and local busi­nesses ben­e­fit­ted from increased traf­fic of tourists com­ing to see the roses.

But then some­thing hap­pened. Some of the cit­i­zens decided that they didn’t like the law, even if the town ben­e­fit­ted in a tan­gi­ble way. Maybe some of these cit­i­zens were aller­gic to roses or maybe some just didn’t like roses, but pre­ferred tulips instead. So, decid­ing that the law was “unfair,” they sued, and brought their case even­tu­ally to a panel of judges. They could have lob­bied the leg­is­la­ture to change the law, but they thought it would be eas­ier to con­vince a small num­ber of judges than it would be to con­vince a major­ity of their fel­low citizens.

The lib­eral judges looked at the plain­tiffs, who were a sym­pa­thetic lot, and agreed with them that it was “unfair” that the town should pro­vide ben­e­fits to the “elite” who were able to pur­chase, plant and main­tain rose­bushes in their yard while “dis­ad­van­tag­ing” these “lit­tle guys” who, for what­ever rea­son, were unable – or unwill­ing – to plant rose­bushes. So these judges decided that it was unrea­son­able for the town leg­is­la­ture to limit the ben­e­fit to roses but, since it was really about beau­ti­fy­ing the town, and tulips are also pretty flow­ers, the tax deduc­tion should apply to any­one who plants flow­ers in their yard. And for those really sym­pa­thetic allergy-​stricken cit­i­zens, they should get the deduc­tion with­out hav­ing to plant any­thing. So, with­out the word­ing of the law hav­ing changed, the legal effect of the law was altered to some­thing that the leg­is­la­ture did not intend.

Under what sys­tem gov­erned by “the rule of law, not of men” does this make sense? Indeed, this deci­sion explic­itly goes against the law as writ­ten, not to men­tion the harm faced by the town in try­ing to mar­ket itself as “The Town of Roses and Tulips or Other Flow­ers” which isn’t nearly as catchy. But there was one judge who under­stood the rule of law, and the proper role of the judiciary.

He bravely went against his col­leagues and pointed out that the judges’ job is “to apply the law Con­gress did pass, not to imag­ine and enforce one it might have but didn’t.” As sym­pa­thetic as the plain­tiffs might be, the judge real­ized that, as much as the “Tulip Law” might be desir­able, “it isn’t there yet. And it isn’t our job to write one” [both quotes from Judge Gorsuch’s dis­sent in TransAm Truck­ing v. Dep’t of Labor]. So, even if the judge wanted to find in favor of the plain­tiffs, he sim­ply could not because the law wouldn’t allow it. His per­sonal beliefs about whether the law was a good idea were sim­ply irrelevant.

Mem­bers of the minor­ity party in the leg­is­la­ture used this emi­nently jus­ti­fied and rea­son­able judi­cial phi­los­o­phy to paint the judge as some kind of mon­ster, cru­elly indif­fer­ent to the plight of the “lit­tle guy” (Sen. Fein­stein, D-​CA), too hung up on “legalisms” (Sen. Har­ris, D-​CA) and “out of the main­stream” (Sen. Shumer, D-​NY) to be con­sid­ered for a posi­tion on the Supreme Court, because they want unelected life-​tenured judges to twist laws to con­form to poli­cies that they pre­fer, regard­less of the actual intent of the leg­is­la­ture when the law was passed, and regard­less of the con­se­quences. They thought it would be eas­ier to get five lib­eral jus­tices on the Supreme Court than it would be to con­trol the leg­isla­tive process, and they were right, for a while.

Jus­tice Gor­such and the other con­ser­v­a­tives on the Supreme Court believe that the judi­ciary should be lim­ited to inter­pret­ing laws as writ­ten. Lib­er­als, who can­not fathom that some­one with that much power wouldn’t use it to make his own pol­icy from the bench, nat­u­rally think that a con­ser­v­a­tive Court will arbi­trar­ily enact poli­cies with which lib­er­als dis­agree. But, as Jus­tice Gor­such tes­ti­fied at his nom­i­na­tion hear­ing, “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.” When the day comes that a major­ity of the Supreme Court – and the entire fed­eral judi­ciary – lives by this code, then Amer­ica will truly be great again.

“A rose is a rose is a rose”

–Gertrude Stein, Sacred Emily

“A rose by any other name would smell as sweet”

– William Shakespeare, Romeo and Juliet

With Justice Gorsuch finally being confirmed to the Supreme Court last week, I wanted to take a moment to look back at the confirmation process and hopefully help explain why putting him on the Court was worth all the parliamentary maneuvering required and why it’s such a good thing for the rule of law. Much of the confirmation hearing was devoted to a discussion of the “Frozen Trucker Case” (TransAm Trucking, Inc. v. Admin. Review Bd., U.S. Dep’t. of Labor), in which then-Judge Gorsuch dissented in a decision to overturn the company’s decision to fire a driver for violating company policy. Since this case, and particularly Judge Gorsuch’s dissent, hinged on the concept of originalism, I present this story.

Once upon a time, there was a town whose legislature passed a law, signed by the mayor, that gave a tax deduction to every homeowner who planted rosebushes in their front yard. For the purposes of our story, it doesn’t really matter why they did this, only that the law was consistent with the town bylaws and was legally enacted. For the first few years, several homeowners took advantage of the tax break and the town derived benefit from the law by being able to market themselves as “The Town of Roses” and local businesses benefitted from increased traffic of tourists coming to see the roses.

But then something happened. Some of the citizens decided that they didn’t like the law, even if the town benefitted in a tangible way. Maybe some of these citizens were allergic to roses or maybe some just didn’t like roses, but preferred tulips instead. So, deciding that the law was “unfair,” they sued, and brought their case eventually to a panel of judges. They could have lobbied the legislature to change the law, but they thought it would be easier to convince a small number of judges than it would be to convince a majority of their fellow citizens.

The liberal judges looked at the plaintiffs, who were a sympathetic lot, and agreed with them that it was “unfair” that the town should provide benefits to the “elite” who were able to purchase, plant and maintain rosebushes in their yard while “disadvantaging” these “little guys” who, for whatever reason, were unable – or unwilling – to plant rosebushes. So these judges decided that it was unreasonable for the town legislature to limit the benefit to roses but, since it was really about beautifying the town, and tulips are also pretty flowers, the tax deduction should apply to anyone who plants flowers in their yard. And for those really sympathetic allergy-stricken citizens, they should get the deduction without having to plant anything. So, without the wording of the law having changed, the legal effect of the law was altered to something that the legislature did not intend.

Under what system governed by “the rule of law, not of men” does this make sense? Indeed, this decision explicitly goes against the law as written, not to mention the harm faced by the town in trying to market itself as “The Town of Roses and Tulips or Other Flowers” which isn’t nearly as catchy. But there was one judge who understood the rule of law, and the proper role of the judiciary.

He bravely went against his colleagues and pointed out that the judges’ job is “to apply the law Congress did pass, not to imagine and enforce one it might have but didn’t.” As sympathetic as the plaintiffs might be, the judge realized that, as much as the “Tulip Law” might be desirable, “it isn’t there yet. And it isn’t our job to write one” [both quotes from Judge Gorsuch’s dissent in TransAm Trucking v. Dep’t of Labor].  So, even if the judge wanted to find in favor of the plaintiffs, he simply could not because the law wouldn’t allow it. His personal beliefs about whether the law was a good idea were simply irrelevant.

Members of the minority party in the legislature used this eminently justified and reasonable judicial philosophy to paint the judge as some kind of monster, cruelly indifferent to the plight of the “little guy” (Sen. Feinstein, D-CA), too hung up on “legalisms” (Sen. Harris, D-CA) and “out of the mainstream” (Sen. Shumer, D-NY) to be considered for a position on the Supreme Court, because they want unelected life-tenured judges to twist laws to conform to policies that they prefer, regardless of the actual intent of the legislature when the law was passed, and regardless of the consequences. They thought it would be easier to get five liberal justices on the Supreme Court than it would be to control the legislative process, and they were right, for a while.

Justice Gorsuch and the other conservatives on the Supreme Court believe that the judiciary should be limited to interpreting laws as written. Liberals, who cannot fathom that someone with that much power wouldn’t use it to make his own policy from the bench, naturally think that a conservative Court will arbitrarily enact policies with which liberals disagree. But, as Justice Gorsuch testified at his nomination hearing, “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.” When the day comes that a majority of the Supreme Court – and the entire federal judiciary – lives by this code, then America will truly be great again.