Much has been made of Judge Neil Gorsuch’s responses to questions from Sen. Feinstein, Franken, and other democrats regarding his faithfulness to the judicial philosophy of Originalism—the idea that judges are bound by their role to faithfully apply the law, rather than rewrite it from the bench. Most conservatives are happy with this response, yet were concerned with or even outright angry at Gorsuch’s response to Sen. Lindsey Graham on Roe v. Wade.
Graham essentially asked Gorsuch whether the president had given him marching orders about overturning Roe. Gorsuch replied, “Senator, I would have walked out the door. That’s not what judges do.” He then continued to speak generally about the value of precedent and why it is important for him to respect the constitutional function of the judicial branch.
Conservatives must realize that this absolutely was the correct response in the context of the judiciary’s role and application of the current law. Judges customarily do not respond directly to questions that anticipate what their ruling would be in future tense. This response from Gorsuch did not in any way undermine his ability or willingness perhaps to eventually overturn Roe IF such an instance would eventually arise while he is on the Supreme Court bench. He was simply saying he is committed to keeping himself within the limited power of the judicial branch, and conservatives failed to understand what this means and why this was the only constitutionally correct answer.
The original, limited function of the judicial branch is to interpret and apply the law as written and enacted by the legislature. The U.S. Constitution specifies that all legislative powers shall be vested in Congress (Art. 1, Sec. 1). The executive branch is vested with enforcing the law on both a state and federal level, and with that enforcement authority comes the power of discretion. The executive may, through district attorneys and U.S. attorneys, determine the individual circumstance of a particular case.
Importantly, utilizing this discretion does not carry binding or even suggestive precedent. Just because the Department of Justice refuses to file charges in one instance does not mean that it is now prohibited from doing so in all similar instances. This is also why the value of precedent is only legitimately valuable when the judicial branch is not making political or policy determinations.
In constitutional law, the concept of a “political question” means that there are some issues inherently political and policy oriented, rather than a question of law, and the judiciary should properly refuse to consider those issues that are constitutionally reserved to the legislative and executive branches. For example, it would be highly improper for a judge to tell a prosecutor what charges to file or whether or not to file charges in a case. That is a question of law enforcement discretion, reserved to the executive branch. However, once that discretionary determination has been made by the prosecutor as a member of the executive, the judge as a member of the judiciary can then determine the associated question of law—does the prosecutor have probable cause (the legal standard determined by the legislature) to bring the charges?
This becomes incredibly important when considering the constitutional differences in power between the executive and the judicial branches. The democratic senators seem to believe that judges are members of the executive—that they may exercise discretion based on their own political interest This is why the judicial branch is the only non-political branch of the three and does not have legislative or administrative functions. It is designed to be entirely non-partisan.
If we are truly conservatives and truly committed to Originalism, we must understand that this dedication to limited powers of judges applies across the board. We cannot apply Originalism to every decision except the ones we prefer to become activists on. Isn’t this precisely the objection that the dissent in the Obergefell v. Hodges decision wrote about in 2015? As Chief Justice Roberts so clearly wrote, “[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgement.’”
This philosophy is the substance of Gorsuch’s responses. He clearly recognizes the limited power granted by the U.S. Constitution to simply make determinations of law not policy. The senate keeps asking him policy based and politically charged questions. What does he think of women’s rights or freedom of religion or whether he will advocate for a certain proposition. But constitutionally speaking, Judges shouldn’t advocate for anything.
In a perfect Originalist world, any competent person should be able to read the law and apply it to specific instances. This is why the U.S. Constitution does not even require that Supreme Court justices be attorneys. It’s actually not that complicated. It only becomes complicated when judges begin to advocate and consider policy positions and begin to make political determinations based on political questions.
The constitutional balance of powers and functional checks enable our constitutional republic to function well if we follow the correct constitutional structure, which is why conservatives are Originalists. We have seen an encroachment into powers fully reserved to the legislative and executive over the past 50-60 years of judicial opinions because people like Sens. Feinstein and Franken want the judicial branch to be political. They are concerned about the outcome of political questions rather than fidelity to the rule of law and keeping the judiciary within its proper constitutional scope of autthority.
Judge Gorsuch and true originalists understand the proper confinement of the judiciary to questions of law, rather than political questions. Conservatives should not be concerned in the least with his fidelity to this proper constitutional understanding, even in the context of his Roe response. Gorsuch did not say that he would never contemplate overturning Roe or make any indication what he might do. That’s constitutionally proper, and the mainstream media and even conservatives are missing the point—We want conservative judges on the bench, not political activists.
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