Just what we don't need.... Scalia 2.0

Orangutan Picks Scalia 2.0

Gorsuch might lack Scalia's flair, but he's a high-powered thinker — and a modern twist on the right's favorite justice.

By RICHARD PRIMUS

Last spring, trying to shore up his conservative credentials for Hugh Hewitt’s radio audience, the insurgent candidate Donald Orangutan laid down a marker about his first Supreme Court nominee: "The ideal,” he told the host, “would be Scalia reincarnated."

In Judge Neil Gorsuch, he’s not far from delivering on his promise. Of all the candidates Orangutan shortlisted for the Supreme Court, Gorsuch is the closest thing to the man whose death left the vacancy. Gorsuch may not have Antonin Scalia’s colorful persona, but he shares any number of Scalia’s other signature traits. He is highly intelligent, legally skilled, and a sharp writer. And he’s deeply conservative. In a judiciary where few judges actually have developed theories of constitutional interpretation, Judge Gorsuch has one, and by and large it is the same originalist approach that Scalia generally took. Gorsuch also shares Scalia’s basic views on any number of hot-button constitutional issues, including abortion, firearms, affirmative action, and capital punishment. All in all, you wouldn’t be far off characterizing Gorsuch as Scalia 2.0.

But it’s important to remember that being Scalia 2.0 in 2017 is different from being Scalia 1.0 in 1986. When Scalia ascended to the highest court thirty-one years ago, his ideas were something new, at least among Supreme Court Justices. Today, in no small part as a matter of Scalia’s own impact, Gorsuch’s jurisprudence is a standard approach among conservative judges with articulate theories of the law. Gorsuch may therefore be less of a pioneer than Scalia, but Scalia could hardly have hoped for a successor more capable of continuing the project.

This is not to say that all of Gorsuch’s views match Scalia’s. Scalia had a strong majoritarian streak, meaning he’d often give politically accountable officials latitude to operate, whereas Gorsuch’s record suggests he’s more comfortable with judges’ second-guessing agencies and legislatures. Consider two examples. In administrative law, Scalia was a major proponent of the Chevron doctrine, under which courts defer to agencies’ interpretations of the statutes that those agencies implement. Gorsuch has called for the end of Chevron deference, which would wrest significant control over agency behavior away from those agencies and vest it in the courts.

And under the First Amendment, Scalia took a relatively narrow view of the right of free religious exercise, maintaining that the Constitution blocks laws that are intended to interfere with religious practice, but does not exempt religious people from complying with laws passed for other legitimate reasons. So, for example, a church couldn’t claim a religious exemption to a state ban on alcohol enacted as a public-health measure. Gorsuch, once again more ready to second-guess politically accountable lawmakers, seems inclined to a more expansive view of what laws “freedom of religion” frees you from.

Though Scalia remains an icon of conservative jurisprudence, it’s Gorsuch whose views are more in step with today’s conservative legal zeitgeist. During the three decades Scalia sat on the Supreme Court, conservative legal thought increasingly deemphasized majoritarianism and deference to elected officials, gradually giving greater weight to regulatory skepticism and the robust construction of certain individual rights. Think, for example, of how the prevailing reading of the Second Amendment changed. Chief Justice Roberts and Justice Alito—the current generation—both support the idea that the Second Amendment confers an individual right that supersedes democratically enacted legislation. Their Republican-appointed predecessors, Chief Justice Rehnquist and Justice Sandra Day O’Connor, would have been more inclined to favor the right of the majority to decide whether and how to regulate firearms. (Scalia himself came around on this change by the end of his career.)

The most sensible way to think of Gorsuch may therefore be to imagine what Scalia might have been if he had come along thirty years later. Scalia came of age at a time when legal conservatives were doing battle with a relatively liberal Supreme Court. Perhaps not surprisingly, they framed their views in terms of judicial restraint and deference to majoritarian lawmaking. Gorsuch’s generation of conservatives, which has lived its whole adult life with a more conservative Court, seems more inclined to see majoritarian regulation as the problem and the judiciary as a good solution.

As a highly qualified nominee with views squarely in the mainstream of the President’s party, Gorsuch’s confirmation process would have been a breeze had he come along at an earlier period. But 2017 is no ordinary time. Judge Merrick Garland was also a highly qualified nominee with views squarely in the mainstream of the President’s party, but the Republican Senate refused to grant him even a hearing, and Democrats have not forgotten. Perhaps worse still, the Republican stonewalling of Garland was clearly founded in a determined opposition to letting any Democratic nominee join the Court at any time. At no point in 2016 did the Republican leadership identify any other Democratic-appointed judge whose confirmation it would be willing to consider, and when in October it looked like Hillary Clinton was about to become President many leading Republicans said openly that they would oppose any nominee she might put forward, even if that meant leaving the Supreme Court indefinitely shorthanded. The message was clear: in the view of the Senate’s Republican leadership, Democratic appointees were to be treated as per se unacceptable, as if being a Democrat were tantamount to being a threat to the Constitution.

In the wake of that experience, it is not clear that Senate Democrats in 2017 can acquiesce in a Republican nomination, even if the candidate is highly qualified—which is to say, even if he is as qualified as Garland was. To be sure, the Republicans have the capacity to muscle a nominee through even over determined Democratic opposition. There are 52 Republican Senators, and a Democratic filibuster would likely result in a Republican decision to change the rules and eliminate the filibuster as a tool capable of blocking Supreme Court appointments. Some Democratic Senators might be loath to go down that road, in part because the end of the filibuster for Supreme Court nominations would bring the Senate a big step closer to eliminating the filibuster entirely, and a party with forty-some Senators might want to keep what leverage it still retains.

Judge Gorsuch’s particular views and qualifications have little to do with whatever drama is about to unfold, just as Judge Garland’s had little to do with what happened last year. The process for staffing the federal judiciary long rested on the premise that each side would consider the other side’s nominees broadly acceptable, albeit preserving the option to object in extreme cases from time to time. That norm has completely broken down, and the long-term consequences for the Republic aren’t yet known. A concern for well-functioning democracy might make us wish dearly that things were different—as indeed might a sense of compassion for the qualified nominees who are caught up in this piece of constitutional dysfunction. But in the end, Judge Gorsuch will probably not need too much compassion. He can ride the process out patiently, confident that he will sit where he wants at the end—in the seat once occupied by the closest thing the previous generation had to a Justice Gorsuch.