Today, amid the many circuit appointments the President has made and Justice Gorsuch taking his position on the Supreme Court, there is an opportunity for Constitutionalism to rise again. There will likely be another Supreme Court vacancy within the next couple years and Chief Justice John Roberts will be tasked with leading the new court forward. My hope is Alexander Hamilton’s Federalist 78 will experience a revival of sorts when considering the next round of monumental cases.

In the modern age, one of the greatest proponents of the judicial restraint articulated in Federalist 78 was Robert Bork. His connection to Constitutionalism was discussed in a prior post. However, there have been traces of his interpretation style in some of the opinions composed by the Chief Justice.

An example I will point to today is his dissenting opinion in Obergefell, the case on the Constitutionality of the right to same-sex marriage. While this post will not provide commentary debating the outcome of the case, it will look to the legal reasoning the Chief Justice relied upon in his dissent. The reasoning is something Constitutionalists should consider as a framework going forward in the approach to major decisions in the coming years. Opportunities will arise and this reasoning is a necessary foundation if we are to succeed in bringing forth a renewed sense of Constitutionalism to the forefront of the Supreme Court and society. Hamiltonian and Borkean elements can be found in its text.

In Chief Justice Roberts’ dissent he states:

“But this 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 judgment.'” [1]

Later, he adds:

“The majority’s decision is an act of will, not legal judgment. . . The majority                 expressly disclaims judicial ‘caution’ and omits even a pretense of humility, openly  relying on its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice.’  As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution. . “.[2]

This interpretation reflects one of Bork’s central fears and assessment of the modern age in his book, The Tempting of America:

“Courts not only share the legislative power of Congress and the state legislatures, in violation both of the separation of powers and of federalist, but assume a legislative power that is actually superior to that of any  legislature.”[3]

Throughout the book, Bork directed much of his criticism towards Griswold[4] and Roe[5] as examples where valid state legislative actions were overturned by an activist judiciary.

In his dissent, the Chief Justice recognizes the limits of the judiciary and reflects Borkean sentiment. The judiciary is not a legislature, tasked with making rulings consistent with societal views and public pressures. Hamilton’s views in Federalist 78 considered this branch of government isolated and distinct. The judiciary is defined as a branch of government with adjudicatory and judgment power.

State legislatures and Congress are tasked with authority to consider the societal views of the modern day and ever evolving nation in crafting legislation for the state or the nation. The judiciary has not been granted such a power. The Supreme Court is bound by the Constitution and its role is defined to evaluate the matters before it through that lens. When the Supreme Court drifts outside its designated task, the nation suffers and many of the issues that divide people to this day came as a result of the Supreme Court inserting itself into questions best left for the legislative branch. The legislative branch answers to democracy with regional and national interests. The Supreme Court answers to the Constitution alone.

The American people would gain a deeper appreciation for the Constitution and the different branches of government if roles of these branches were not confused with each other. Under the guidance of the Chief Justice, the Supreme Court can return to these fundamentals and provide a sense of stability to Constitutional interpretation. My hope is the high court moves in this direction with the addition of Justice Gorsuch and reliable fellow Constitutionalists Clarence Thomas and Samuel Alito. However, it is the influence of the Chief that will ultimately bring this to fruition. If the reasoning in the Obergefell dissent is any indication, I am hopeful for the future. All it takes is the Hamiltonian and Borkean key to be turned.

[1] Obergefell v Hodges, 135 S Ct 2584, 2611, 192 L Ed 2d 609 (2015). The Supreme Court granted the Constitutional right to same-sex marriage and removed the issue from state definition.

[2] Id.

[3]  Robert Bork, The tempting of America: The Political Seduction of the Law (1991).

[4] Griswold v. Connecticut 381 U.S. 479 (1965).  A long-standing Connecticut statute banning contraception was invalidated by Supreme Court”

[5] Roe v. Wade 410 U.S. 113 (1973). Long-standing state statutes banning abortions were invalidated by the Supreme Court.

 

The Federalist Society Lawyer’s Convention occurred this past week and it was quite an intellectual banquet filled with excitement. As Constitutionalists, we are seeing hope again. The theme of this year focused on the Administrative State and it is an area that is ripe for change in the coming years.

Names like Senator Tom Cotton, Attorney General Jeff Sessions, Department of Labor Secretary Alex Acosta, Health and Human Services Director of Civil Rights Roger Severino, NLRB Chairman Philip Miscimarra, EPA Commissioner Scott Pruitt, Becket Fund Attorney Mark Rienzi, Judge Diarmuid O’Scannlain of the Ninth Circuit, Judge William Pryor of the Eleventh Circuit, Appointee to Eighth Circuit David Stras and of course Justice Neil Gorsuch of the United States Supreme Court were among the many names that spoke this year. It was an all-star collection of Constitutionalists and Federalists united together for a common cause.

Much of the focus was on how the administrative state has enlarged to the detriment of Americans in defiance of the Constitution. A roll back has begun under the new administration and it will continue into the foreseeable future. In the past, many of the agencies have produced laws and guidelines evading the Notice and Comment process required for rule-making. Unelected officials would commonly enforce regulations in past years and abuse the power of the executive branch with absorption of unchecked legislative authority. Some examples include the Clean Power Plan that is in the process of being rescinded by the EPA and unfairly burdened much of the coal industry. Another example is the HHS mandate that violated the conscious rights of religious employers that chose to not provide coverage for certain contraceptive and abortifacient services. The new administration has revoked much of the mandate that burdens the religious employers. However, in many avenues of administrative law there is still much work to be done.

The class of judicial appointees that have been nominated or recently seated are Constitutionalists. There is a good opportunity for the judiciary to review the state of administrative law in coming years and curtail its abuses in the matters that come before it.

Overall, it was an excellent week with much intellectual discourse occurring in D.C. However, the highlight of the week was Justice Neil Gorsuch’s address at the Antonin Scalia Memorial Dinner. Some notable moments included his reaffirmation of the importance of Federalist 78 in the context of the judiciary today. We must return to the principles embodied there when Hamilton stated the judiciary “[c]an take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.”

Gorsuch explained in his address to the many in attendance- “In our legal system, judges wear robes not capes.” Invoking this foundational principle when interpreting the law will benefit the Supreme Court and American people. Justice Gorsuch has shown with his decisions and commentary that he is well aware of his place as a judge on the highest court as an interpreter and not a legislator. He is the judge this country needed and will ensure originalism continues to be a core philosophy when interpreting the Constitution. He stated, “Originalism has regained its place and textualism has triumphed and neither is going anywhere on my watch.” I believe he will keep his promise. The late great Justice Scalia has a worthy heir to carry on the Constitutionalist legacy.

Justice Gorsuch, carry on the great work – Constitutionalists, Federalists, and the American people support you and are proud to have you as a champion for originalism on the Supreme Court.