The nihilism of Neil Gorsuch on the Supreme Court

[Horse Dewormer Will Save America]

VOX.COM
The nihilism of Neil Gorsuch on the Supreme Court
Ian Millhiser

Neil Gorsuch was ready to blow up the US housing market over a minor
legal violation.

The case in front of the Supreme Court was Collins v. Yellen (2021),
which had at its center the Federal Housing Finance Agency (FHFA), an
obscure body that oversaw hundreds of billions of dollars' worth of
transactions intended to stabilize the housing market after the 2008
recession. The FHFA is led by a single director whom only the
president can fire "for cause." The plaintiffs in Collins v. Yellen
argued the president must have unlimited power to fire the agency's
head, citing the Supreme Court's 2020 ruling in Seila Law LLC v.
Consumer Financial Protection Bureau (CFPB).

But under the Collins plaintiffs' arguments, it also followed that if
the FHFA head was fired, every action the agency had taken since its
creation in 2008 should be declared void -- a truly radical prospect.
That argument won very little favor from the justices. Last June, the
Court handed down a relatively modest opinion that gave President Joe
Biden (and all future presidents) the power to fire the FHFA director
without reversing the agency's past work.

But Gorsuch would have none of it.

In a partial dissent, Gorsuch complained that his colleagues were too
spooked by the prospect of "unwinding or disgorging hundreds of
millions of dollars that have already changed hands" (an underestimate
of the amount of money at stake by several orders of magnitude). The
proper approach, Gorsuch opined in Collins, was to declare the FHFA's
actions "void."

If Gorsuch had gotten his way, 13 years of work and hundreds of
billions of dollars' worth of transactions would have been unraveled,
possibly delivering a shock to the mortgage-lending industry similar
to that of the 2008 crisis -- or even sending the world economy into a
tailspin.

And yet, for Gorsuch, the potential consequences were irrelevant to
how the Court should rule.

It wasn't the only case this term where Gorsuch brushed aside worries
about widespread disruption that could have done tremendous harm to
millions of people. Six days before the Collins ruling was handed
down, the Court decided California v. Texas (2021), the most recent
attempt by Republicans to repeal the Affordable Care Act by judicial
decree. This latest attack on Obamacare rested on legal arguments so
weak, they were widely derided even by many of the ACA's most
outspoken critics.

Gorsuch and Samuel Alito were the only two justices who argued that
the Court should set fire to the Affordable Care Act. Had their views
prevailed, approximately 31 million Americans would have lost health
insurance.

In his four years on the Court, Gorsuch has staked out a more
ambitious agenda than many preceding justices articulated in four
decades, and he has seized every opportunity to implement as much of
this agenda as possible. He arguably has a better sense of where he
wants to take the law than any other member of the Court. He is
broadly anti-government, skeptical of democracy and the institutions
that make it possible, and eager to centralize power within the
judiciary.

That worldview and his certitude of its rightness are married with a
willingness, even eagerness, to impose draconian consequences on the
nation if he catches someone violating his often-quite-unusual ideas
about what the rules should be.

That's a troubling combination in anyone, but it's a potentially
dangerous one in a judge. And while Gorsuch doesn't always get his way
-- even on a 6-3 conservative Court -- his overarching view that power
should be concentrated within the judicial branch has broad support
among his Republican-appointed colleagues.
Gorsuch's selective textualism

The lodestar of Gorsuch's rhetoric about how judges should interpret
the law is "textualism," which he described in a 2020 book as the idea
that judges' sole task when interpreting legal texts is to determine
"what an ordinary English speaker familiar with the law's usages would
have understood the statutory text to mean at the time of its
enactment."

Proponents of textualism -- and of its close cousin originalism, which
applies the same methodology to the Constitution -- often hold it up
as a politically neutral approach that prevents judges from
substituting their personal preferences for the law. "Textualism,"
Gorsuch writes in his book, requires judges to "determine impartially
and fix what the law is, not simply declare what it ought to be."

In reality, this method rarely lives up to such lofty promises. Many
legal texts (including much of the Constitution) are ambiguous and can
be fairly read in many ways. And what should a court do if it
concludes that a century-old decision -- one that millions of
individuals and businesses may have relied on for decades -- misread
the text of a statute? Should 100 years of settled law be upended?

Setting aside textualism's flaws, Gorsuch's record on the Supreme
Court exposes just how spotty his application of the methodology is.
Though his own opinions frequently preach the gospel of textualism,
he's shown no compunction about joining other justices' opinions that
treat the text of a statute as merely optional.

Consider, for example, Justice Samuel Alito's majority opinion in
Brnovich v. Democratic National Committee (2021), a 6-3 decision along
partisan lines, which imposed novel, extratextual limits on the Voting
Rights Act.

Brnovich, in Justice Elena Kagan's words, "mostly inhabits a law-free
zone." Alito's opinion invents novel constraints on the Voting Rights
Act -- such as a strong presumption that voting restrictions that were
commonplace in 1982 are lawful -- that appear nowhere in the act's
text. It is the quintessential example of judges declaring what they
think the law "ought to be" rather than determining impartially what a
statute actually says.

Yet Gorsuch joined Alito's opinion in full -- even though he wrote a
separate concurring opinion suggesting that the Court should impose
additional limits on the Voting Rights Act that could deactivate it
completely during Republican administrations. It's a neat trick. By
leaving the dirty work of mangling a statute to his colleague, Gorsuch
saved himself from the difficult task of explaining why textualism
does not apply to the Voting Rights Act.

Gorsuch is also perfectly willing to follow anti-textualist precedents
that yield conservative results. His first major Supreme Court
opinion, Epic Systems v. Lewis (2018), fits this mold.

In theory, Epic Systems asked the Court to interpret the Federal
Arbitration Act. Enacted in 1925, the act was supposed to, in Justice
Ruth Bader Ginsburg's words, enable "merchants with relatively equal
bargaining power" to agree to resolve their disputes before a private
arbitrator rather than through a more lengthy and burdensome
litigation process. Importantly, the act's text exempts "workers
engaged in foreign or interstate commerce" -- so the statute was never
supposed to enable arbitration in employment disputes.

Epic Systems concerned two previous decisions that butchered the act's
text. In Circuit City v. Adams (2001), the Supreme Court held that the
act does, in fact, apply to most workers engaged in foreign or
interstate commerce. The upshot of Circuit City is that employers can
force their workers to sign away their right to sue the employer in a
real court as a condition of keeping their job. (There is some nuance
to the Circuit City opinion, but it doesn't change the fact that it is
an abomination against textualism. I explain in detail why Circuit
City was wrong here.)

The other previous decision was AT&T Mobility v. Concepcion (2011),
which held that, under the Arbitration Act, companies may force
workers or consumers to sign away their right to bring a class action
as a condition of doing business with that company -- something the
Arbitration Act has nothing to say about whatsoever.

Epic Systems sat at the intersection of these two previous
anti-textualist decisions -- and Gorsuch wrote the majority opinion
ruling in favor of the employers. Under Epic Systems, employers can
force their workers to sign away their right to join together in a
single lawsuit against their employer, and that employer may also
force those workers into arbitration.

Decisions such as these show that Gorsuch's commitment to textualism
can be little more than hot air. He is a selective textualist, who
frequently evangelizes in favor of this method of interpretation but
often abandons it in cases that reach a conservative result.

In fairness, Gorsuch's selectivity has led to the occasional surprise.
Any liberal critic of Gorsuch's imperfect textualism must confront his
majority opinion in Bostock v. Clayton County (2020), which held that
a federal law banning "sex" discrimination in employment prohibited
discrimination on the basis of sexual orientation and gender identity.
Bostock represents the high-water mark of Gorsuch's commitment to
textualism.

"An employer who fires an individual for being homosexual or
transgender fires that person for traits or actions it would not have
questioned in members of a different sex," Gorsuch explained. An
employer who fires a male employee for being attracted to men engages
in "sex" discrimination, for example, unless they would also fire
female employees who are attracted to men.

Similarly, if an "employer intentionally penalizes a person identified
as male at birth for traits or actions that it tolerates in an
employee identified as female at birth," then that "employee's sex
plays an unmistakable and impermissible role in the discharge
decision."

Bostock gave Gorsuch a prime opportunity to demonstrate that
textualism was more than just an excuse to reach conservative results,
and his opinion in Bostock triggered rage from the more strident
elements of the religious right. "If we've been fighting for
originalism and textualism, and this is the result of that," Sen. Josh
Hawley (R-MO) said of Bostock, "then I have to say it turns out we
haven't been fighting for very much. Or maybe we've been fighting for
quite a lot, but it's been exactly the opposite of what we thought we
were fighting for."

But Gorsuch should hardly be seen as a champion of LGBTQ rights. He is
one of the Court's most outspoken proponents of the idea that
religious conservatives should be allowed to ignore many laws,
including those banning LGBTQ discrimination, if they object to those
laws on religious grounds.

Few justices in recent years have shown more hostility toward the
right to vote and toward democracy more broadly than Neil Gorsuch. His
opinion in Brnovich, where he suggested that the Voting Rights Act
could cease to exist during Republican administrations, is fairly
typical of his approach to the franchise.

The Court's decision in Andino v. Middleton, which was handed down
about a month before the 2020 election, offers another data point.

In Andino, the Supreme Court reinstated a South Carolina law requiring
absentee voters to have another person sign their ballot as a witness,
after a lower court had blocked this law. When the justices handed
down their decision, however, the lower court's order had already been
in effect for several weeks and at least 20,000 voters had already
cast an early ballot in South Carolina.

A majority of the Supreme Court carved out a sensible exception to its
decision, holding that "any ballots cast before this stay issues and
received within two days of this order may not be rejected for failing
to comply with the witness requirement." Gorsuch, however, rejected
this carve-out. He, along with Justices Clarence Thomas and Alito,
would have tossed out all ballots that lacked a signature -- even if
those ballots were cast in accordance with the rules that were in
place at the time.

Gorsuch also joined the Court's opinion in Rucho v. Common Cause
(2019), which held that federal courts may not intervene when state
lawmakers use partisan gerrymanders to lock their party into power.
And, in a concurring opinion in Democratic National Committee v.
Wisconsin State Legislature (2020), Gorsuch would have given state
legislatures sweeping new authority to ignore constitutional
constraints on their ability to write new election laws.

"The Constitution provides that state legislatures -- not federal
judges, not state judges, not state governors, not other state
officials -- bear primary responsibility for setting election rules,"
Gorsuch wrote in Democratic National Committee.

Taken to its logical extreme, this position could prevent Democratic
governors in states like Wisconsin and Pennsylvania from vetoing voter
suppression laws or partisan gerrymanders by those states' Republican
legislatures (legislatures, it is worth noting, that often have
inflated GOP majorities due to gerrymandering). It could also prevent
states from setting up independent redistricting commissions to combat
gerrymandering. And it could strip state supreme courts of their power
to strike down election laws that violate the state constitution.

As Gorsuch votes to limit the franchise and make it easier for
Republican lawmakers to skew the results of elections, he has also
launched a direct attack on the free press -- an institution that is
essential to any democracy.

It's become fashionable for justices across the partisan divide to
blame the media for the fact that the judiciary is increasingly seen
as political. Justices Thomas, Stephen Breyer, and Amy Coney Barrett
all recently blamed the press for, in Thomas's words, suggesting that
judges place their "personal preference" ahead of the law.

But Gorsuch is one of only two justices (Thomas is the other) who has
explicitly called on his Court to strip away First Amendment rights
from journalists.

New York Times v. Sullivan (1964) is the Court's single most important
decision protecting journalists' ability to report the news without
intimidation from government officials. The case involved a lawsuit by
a Jim Crow-era Alabama official, who won a $500,000 verdict against
the Times, after the paper published an advertisement purchased by
civil rights activists. Alabama courts justified this verdict because
the ad contained minor factual errors (such as claiming that Martin
Luther King Jr. had been arrested seven times, when he'd actually been
arrested four times).

New York Times established that government officials may not use
malicious defamation suits to target free speech -- and to target news
outlets that play an essential role in a democracy. Under the Court's
decision, when someone speaks about a public figure regarding a matter
of public concern, they cannot be liable for making false statements
unless such a statement was made "with knowledge that it was false or
with reckless disregard of whether it was false or not."

And yet, in a dissenting opinion in Berisha v. Lawson (2021), Gorsuch
labeled New York Times an "ironclad subsidy for the publication of
falsehoods" and suggested that the "law of defamation" should be
determined "almost exclusively" by the states.

It's difficult to exaggerate the perils of Gorsuch's approach.
Imagine, for example, that I mistakenly report that "2,600 people
attended a rally protesting a speech by Florida Gov. Ron DeSantis,"
when, in fact, only 2,400 people attended the rally. If states are
free to set their own defamation law, DeSantis could potentially sue
me and Vox Media for millions, endangering our ability to continue to
report the news -- and chilling reporting on DeSantis by other
outlets.

When Gorsuch first arrived at the Court, he seemed unlikely to exert
much influence over his colleagues in a hidebound, monastic
institution whose members have, historically at least, tried to convey
the impression that they are engaged in something other than pure
politics.

For one thing, shortly after his confirmation, Gorsuch seemed to go on
a "thank-you" tour, rewarding Republican officials and advocates who
gave him his new gig. This included a speech to a conservative group
at then-President Trump's hotel in DC, a speech alongside then-Senate
Majority Leader Mitch McConnell at the University of Louisville's
McConnell Center, and a final victory lap at the conservative
Federalist Society's annual convention.

"There's a reason we questioned his independence during his
confirmation hearings," Senate Democratic leader Chuck Schumer said in
a statement regarding Gorsuch's Trump hotel speech. Deborah Rhode, a
Stanford legal ethics professor, was even more critical, telling the
Washington Post that "all of this indicates that he's just ethically
tone-deaf."

Gorsuch also picked nonstrategic fights, sometimes with his fellow
conservatives. In a case involving a labyrinthine statute that even
many of the justices struggled to parse -- Justice Alito asked during
oral argument, "Who wrote this statute, somebody who takes pleasure
out of pulling the wings off flies?" -- Gorsuch wrote a smug and
condescending dissent attacking his colleagues for failing to read the
statute as he did.

"Congress already wrote a perfectly good law. I would follow it," the
recently confirmed Gorsuch lectured the seven justices in the
majority.

Meanwhile, Gorsuch's ponderous writing style ("Chesterton reminds us
not to clear away a fence just because we cannot see its point...")
spawned a Twitter hashtag, #GorsuchStyle, where lawyers took turns
mocking the new justice's purple prose. "Since his elevation to the
Supreme Court," Slate's Mark Joseph Stern wrote in a 2018 column,
"Gorsuch's prose has curdled into a glop of cutesy idioms, pointless
metaphors, and garbled diction that's exhausting to read and
impossible to take seriously."

Two things happened since Gorsuch's early mishaps, however. One is
that his writing got better. Stern conceded a few months after his
column that "the justice's writing has markedly improved."

The other is that Gorsuch appears to have assembled a majority within
the Court for one of the most consequential changes to American law in
recent memory.

One of Gorsuch's major projects since becoming a judge is diminishing
the power of federal agencies to regulate private businesses and
individuals. Congress frequently delegates power to these agencies in
order to implement policies that are too complex for the legislature
to implement on its own. The Clean Air Act, for example, requires
certain power plants to use the "best system of emission reduction"
that is cost-effective but charges the Environmental Protection Agency
with determining what the "best system" is at any given moment as
emission-reduction technology improves.

For many years, the Court warned judges to be very careful about
second-guessing how federal agencies exercise this regulatory power,
in part because agencies tend to have specialized policy expertise
that judges lack but also because agencies like the EPA have more
democratic legitimacy than the judiciary. Although "agencies are not
directly accountable to the people," the Court explained in Chevron v.
Natural Resources Defense Council (1984), the president who appoints
agency heads is accountable through elections. Thus, it is "entirely
appropriate for this political branch of the Government to make such
policy choices."

Gorsuch, however, approaches federal agencies with the same hostility
as he shows toward democracy -- and the same unmitigated confidence in
an increasingly right-wing judiciary. For him, the mere fact that
agency officials are responsive to electoral politics makes them
suspect. In a 2016 opinion, urging the Supreme Court to overrule
Chevron, then-Judge Gorsuch held up judges as paragons -- "independent
decisionmaker[s]" whose job is to "declare the law's meaning as fairly
as possible." Meanwhile, officials who are accountable to an elected
president are "politicized" and eager "to pursue whatever policy whim
may rule the day."

Gorsuch appears poised to win this fight, and then some. In his
dissenting opinion in Gundy v. United States (2019), he effectively
tried to give the judiciary a veto power over any agency regulation
that its members do not like. While his opinion in Gundy was a
dissent, he's since convinced a majority of his colleagues to see this
issue his way.

Which leads to the quality that may well determine his legacy: Gorsuch
has shown a genuine talent for building a coherent doctrinal framework
around the Court's most results-driven decisions.

Gorsuch's retconning of Justice Alito's majority opinion in Glossip v.
Gross (2015) is a good example. Glossip arose after many drug
manufacturers stopped selling reliable sedatives to states that wished
to use them in executions. Without access to these drugs, some states
turned to painkillers of dubious reliability. In at least some cases,
these unreliable painkillers caused death row inmates to effectively
be tortured to death.

And yet, Justice Alito wrote a majority opinion suggesting that
enforcing the death penalty is a value of such superlative importance
that states must be free to execute people even if they are tortured.
"Because it is settled that capital punishment is constitutional,"
Alito wrote, "it necessarily follows that there must be a
constitutional means of carrying it out."

Alito essentially reached the result he wanted by assuming his own
conclusion.

Enter Gorsuch. A few years after Glossip, in Bucklew v. Precythe
(2019), Gorsuch wrote the majority opinion in a very similar case
brought by an inmate who did not want to die in agony. Yet while Alito
built his entire Glossip opinion around a logical fallacy, Gorsuch's
Bucklew opinion was much more ambitious.

For many decades, Supreme Court decisions interpreting the Eighth
Amendment's safeguard against "cruel and unusual punishments" followed
a framework announced by Chief Justice Earl Warren in a 1958 opinion:
"The Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society."

But in Bucklew, Gorsuch ignored this framework altogether, instead
suggesting that the scope of the Eighth Amendment was determined over
two centuries ago and it may never change. "Death was 'the standard
penalty for all serious crimes' at the time of the founding," Gorsuch
wrote. "Nor did the later addition of the Eighth Amendment outlaw the
practice. On the contrary -- the Fifth Amendment, added to the
Constitution at the same time as the Eighth, expressly contemplates
that a defendant may be tried for a 'capital' crime and 'deprived of
life' as a penalty, so long as proper procedures are followed."

With this brazen ruling, Gorsuch produced a majority opinion that is
likely to have far more impact than Alito's decision in Glossip. While
Glossip preserved the ability of states to execute people, even if
they must inflict severe pain in order to do so, Bucklew did all of
that and it announced a revolutionary new framework that could upend
more than 60 years of Eighth Amendment jurisprudence.

When Gorsuch has the chance to write a majority opinion, in other
words, he typically shoots for the moon. His jurisprudence shows utter
disregard for the norms of an institution he now belongs to and to the
work of generations to come up with a system of law that can manage a
pluralistic society. It's a revolutionary project, breathtaking in its
audacity and nihilistic at its core.

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