Neil Gorsuch: He Might Really Mean It

Wow. Does Neil Gorsuch really mean it when he calls himself an originalist? You mean, it isn't a disingenuous term that covers up knee-jerk conservatism--or something someone else might call conservatism?

There's reason to think so. Gorsuch has become the unconventional conservative on the court. His independence is bracing, at least so far. And I like it.

He threw 45's suspected dependent, self-serving appointment to the Court right back in his face yesterday when he supported the 7-2 majority in telling 45 that he can't refuse a subpoena, regardless of his position as president. 45, who has no respect for any law, not even the Constitution, figured he would sail through.

He didn't. Brett Kavanaugh, another 45 appointee, wouldn't let him do that, either. It was a boilerplate decision that any self-respecting president wouldn't even take on. That two justices voted to support 45's ridiculous notion of a "unitary presidency" shows how radical they have become, or perhaps were always.

But the checks and balances of the system, again under strain, have held, at least for now. Those wishing an immediate display of justice, to put 45's tax returns under scrutiny, will get frustrated again. In that way, maybe 45 got away with running out the clock.

But it doesn't matter all that much. First of all, he's trailing in the polls by a mile, though that can always change. But it looks as if he's going to get beat. Second, if he has that much to hide, his tax frauds will eventually be tried in court, and he's likely to go to jail. That he does so before or after his presidency is largely irrelevant to the larger issue of whether he stands to be accountable or not. The joke of impeachment notwithstanding, he still will.

Gorsuch also crossed over to join with the Court's progressive wing yesterday when he said--and, in fact wrote the opinion, heavy stuff that he's not the least bit afraid to take on--that Native Americans still claim ownership of a significant bunch of real estate in Oklahoma, that jursidiction belongs to the federal government, not the state. To do that, he had to go back to the original agreement which allowed it.

Legal practice has allowed a slippery slope of jurisdictional transference to take place over the years, but Gorsuch said that didn't matter. What does the original agreement say? Has there been any legislative, substantive change in it? Shouldn't we respect that first?

What this means is that adherence to originalism can cut both ways. It may be more beneficial to the body politic to rely on it, as long as the reliance is genuine and not a facade for a prearranged agenda--which I think 45 has been counting on all along.

It means, too, that Gorsuch sees himself as a vehicle for what he believes is a higher concept of judicial reasoning. That may be a bit haughty and lofty, but you know where he is. And what he wants--at least, what it looks like he wants--is to get people to pay attention to what he thinks the Constitution has always meant, not something he's made up for the sake of convenience.

I don't think he sees himself as lofty. If he's good to his goals, he's really being quite modest. He's letting the law take over. He's saying that the law is bigger than he is, than anyone could possibly be.

Want to change anything? Get whatever legislature going that's relevant to do so. Maybe it's been a while since things have been reconsidered. Well, then, maybe legislators should wake up. Maybe legislatures should dispose with being so damn ideological and get some things passed. But, he says, I'm not going to legislate from the bench.

I'm going with whatever legislation has been passed, the words used in whatever year, he's apparently saying. Not relevant anymore? Fine. Pass another law that works.

So far, that's the way it looks. I might not like everything he's done (I don't) but it's rare that anyone who studies the Court thoroughly likes everything anyone has done in the long run, which is how most justices should be considered. If a Supreme Court never creates at least a little bit of frustration, it isn't doing its job.

It means, too, that conceptually, Gorsuch cannot be bandied about as a knee-jerk anything. This will have a positive affect on how the Court is viewed--as more of an independent group of arbiters, not an automatic checkbox of attitudes. No, no: Look at the original meaning of whatever's being considered. Gorsuch is likely to be there.

Where you might not agree is with the very original meaning that he's gleaned from a situation. That's entirely possible. But it's going to be interesting as we go, because that's what seems to be guiding him. He might be easy to read, but he won't be anybody's cat's-paw.

Sure, I'd like the progressives to win all the decisions. Who wouldn't? They won't, though, and perhaps for now, this is all we can hope for. But if Gorsuch really is that independent, all will not be lost, and all is not, at least for the moment.

Neil Gorsuch is refreshing. He may unstick the commentary from a xeroxed set of reactions to a new consideration of what the law is and should be in our ever-flowing democracy. I don't see anything wrong with that. It feels a little like an iceberg cracking.

Be well. Be careful. Wear a mask. With some luck, I'll see you down the road.


Mister Mark