Supreme Court nominee Judge Neil Gorsuch and the late pro-life Justice Antonin Scalia have much in common. Both are originalists who believe that the courts are to interpret legal provisions and light of the Constitution and its original meaning.
But the two were friends and spent time together on a personal level prior to Justice Scalia’s passing.
Judge Gorsuch already has strong support within the pro-life and conservative communities. But if they need any additional proof that Judge Gorsuch will be a Supreme Court Justice in the mold of Justice Scalia — their similar judicial philosophy is evident from a tribute the appeals court gave to the late Supreme Court Justice after Scalia’s death.
Sometimes people are described as lions of their profession and I have difficulty understanding exactly what that’s supposed to mean. Not so with Justice Scalia. He really was a lion of the law: docile in private life but a ferocious fighter when at work, with a roar that could echo for miles. Volumes rightly will be written about his contributions to American law, on the bench and off. Indeed, I have a hard time thinking of another Justice who has penned so many influential articles and books about the law even while busy deciding cases.
But tonight I want to touch on a more thematic point and suggest that perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society.
Judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best. As Justice Scalia put it, “if you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
It seems to me there can be little doubt about the success of this great project.We live in an age when the job of the federal judge is not so much to expound upon the common law as it is to interpret texts— whether constitutional, statutory, regulatory, or contractual. And as Justice Kagan acknowledged in her Scalia Lecture at Harvard Law School last year, “we’re all textualists now.”
Capturing the spirit of law school back when she and I attended, Justice Kagan went on to relate how professors and students often used to approach reading a statute with the question “[G]osh, what should this statute be,” rather than “[W]hat do the words on the paper say?” —in the process wholly conflating the role of the judge with the role of the legislator. Happily, that much has changed, giving way to a return to a much more trad-itional view of the judicial function, one in which judges seek to interpret texts as reasonable affected parties might have done rather than rewrite texts to suit their own policy preferences.
And, as Justice Kagan said, “Justice Scalia had more to do with this [change] than anybody” because he “taught” (or really reminded) “everybody how to do statutory interpretation differently.” And one might add: correctly.
Though the critics are loud and the temptations to join them may be many, mark me down too as a believer that the traditional account of the judicial role Justice Scalia defended will endure
As the founders understood it, the task of the judge is to interpret and apply the law as a reasonable and reasonably well-informed citizen might have done when engaged in the activity underlying the case or controversy—not to amend or revise the law in some novel way. As Blackstone explained, the job of the judge in a government of separated powers is not to “make” or “new-model” the law.
With the Roe v. Wade case allowing unlimited abortions widely considered to be one of the worst over-reaches in its history, Judge Gorsuch’s words are comforting that he as the right judicial temperament to serve on it.