Not Just Justice Gorsuch, Prof. Turley: The Entire Supreme Court Is Owed An Apology.

In an article yesterday in The Hill, Constitutional Law expert Professional Jonathan Turley proclaims that Justice Neil Gorsuch is  owed an apology by the Washington political establishment (meaning D.C. Democrats and progressives) which had labeled him a “rubber stamp” and a right wing ideologue in the course of its non-stop wailing about the loss of Obama nominee Merrick Garland, the victim of a ruthless bit of partisan maneuvering by Mitch McConnell. One would have thought that Gorsuch had conspired with “Cocaine Mitch.”

Turley (who testified on Gorsuch’s behalf, so his essay has more than a bit of a smug “I told you so!” ring), focuses particularly on yesterday’s SCOTUS ruling in U.S. v. Davis, in which Gorsuch joined to so-called liberal wing to strike  down an ambiguous law that allowed enhanced penalties for a “crime of violence.” Turley was impressed that Gorsuch squared off against Supreme Court rookie Bret Kavanaugh, whose dissent seemed to be based on a version of the “Everybody does it” rationalization, arguing that the statute was used in “tens of thousands of federal prosecutions” for over 30 years and calling it “surprising” that it should suddenly be ruled unconstitutional.

Somehow, Turley has forgotten that Kavanaugh’s nomination was violently opposed by the Left because he was certain to be the final human nail in Roe v. Wade.

His dissent here, and his opinions in other cases this term, however, suggest that Kavanaugh, more than Gorsuch, seems to regard the tradition of stare decisus as vital. Stare decisus, the principle that the Supreme Court’s previous judgments should not be discarded just because a new Court mix would have decided the issue differently. Judicial conservatives tend to avoid overturning both decisions and laws that have stood the test of time.

I agree with Turley that Gorsuch was on the right side of this case, and that his opening statement in the majority opinion that he authored—“In our constitutional order, a vague law is no law at all”—is one for the ages. How ironic it would be if that line is someday evoked to strike down hate crime laws, which are also indefensibly vague as well as superfluous. It would be even more ironic if Gorsuch’s open-mindedness in Davis portends a willingness to consider killing Roe.

The point is that the Justices are not the predictable partisan puppets that pundits, Presidents and people who never read their opinions claim they are. It isn’t merely Gorsuch but the entire Court that is owed an apology. At a time when partisan critics have attacked the Court’s justices as little more than individual, robed extensions of the parties’ platforms, the opinions and votes in the cases decided this term have repeatedly disproved that insulting assessment. While there are stronger and weaker (and more and less political) members of the Court, the shifting alliances show, as they should, nine dedicated professionals who are sincerely trying to interpret the laws and Constitution in good faith and in the best interests of the nation.

Undoubtedly Chief Justice John Roberts has played a significant role in encouraging a less stratified and predictable Court, as he has bristled at the suggestion that his colleges are driven by politics rather than legal analysis. But Roberts didn’t give Gorsuch the assignment of writing the majority’s opinion in Davis; Justice Ginsburg, as the senior Justice voting with the majority did. She chose, not one of her liberal compatriots, but the supposed knee-jerk conservative.

And while it is completely futile for me to write this, I will anyway: the other individual who is owed an apology as we watch the performance of the Court whose composition he is 22.2% responsible for assembling is President Donald J. Trump.

10 thoughts on “Not Just Justice Gorsuch, Prof. Turley: The Entire Supreme Court Is Owed An Apology.

  1. No, no, no!

    I think you recently stated that you don’t apologize for. Wing wrong, but for doing wrong.

    I found that insightful and I think it applies here. Being wrong about Justices does not warrant an apology.

    In a similar vein, I hold that no apology is necessary where no injury occurs, meaning I don’t owe the world an apology just because it is offended at what I say or do. If I wrong someone, only that person is owed an apology.

    Too often, as has been noted here, demands for apology or contrition are not made out of motives of forgiveness or reconciliation, but out of a desire for power and control.

    No apologies warranted here.


    • They should have apologized from the beginning, before Gorsuch (or Kavanaugh) heard their first case. It wasn’t that the critics turned out to be wrong. They were bigoted, unjust and unfair.

      • Sorry: didn’t finish. The point is that one shouldn’t apologize for fair and reasonable conclusion or action that turns out to be incorrect based on subsequent or mistaken results. But the attacks on Gorsuch and Kavanaugh were not such actions. They were based on bias. They were wrong even if the ultimate conduct of the two Justices eventually met the unfair assumptions.

  2. Isn’t stare decisus just a special case of “everybody does it” or “We’ve always done this”? I think you might want to add a caveat to #45 distinguishing it. I think judges pay far too much respect to past decisions overall, but at the same time the idea of the law changing every time a judicial appointments changed scares me

    • An important aspect of stare decidís is that the law does not discriminate. It is embedded with the notion of precedent. If judges have decided things one way, later judges have to do the same thing based upon precedent. It helps prevent (in theory) an unsavory party from being treated differently merely for being unsavory. It takes away judicial discretion. Stare Decisus simply outlines the bases for which precedent may be be reversed.


  3. I’m glad I didn’t jump the gun in comments before reading your entire post, since the first thing that popped into my head, after the description of the case, was “What about “hate crimes”, then?

  4. “The point is that the Justices are not the predictable partisan puppets that pundits, Presidents and people who never read their opinions claim they are.”

    The other point is that the pundits and more than a few presidents would have liked them to be just that, for whichever side they come from. A liberal justice who is a reliable vote on the left is just doing her best to make this country a better, fairer, more inclusive place. A liberal justice who breaks with liberal orthodoxy (as Justice Breyer did on the Bladensburg case) is suspect or slipping. A conservative justice who is a reliable vote on the right is just another son of privilege, trying to keep this country stratified and maintain the privileges of the privileged at the expense of the oppressed. A conservative justice who breaks with his brethren (as Gorsuch did here) is seeing a flash of the light, now if only he’d keep his eyes open…

    I wrote at some length last year about Supreme Court history, jurisprudence, and, in my opinion, what had become abuse of the Court and the process. Too many folks, mostly on the left, see the Court and the court system as their way around the other two branches of government and, when necessary, around a populace that just isn’t seeing it their way or isn’t seeing it their way quickly enough. To them, the Supreme Court is the parent you call on when the other kids won’t give up the toy you want to play with, or won’t play your game by your rules. Now suddenly the court isn’t always giving them the red plane and a pat on the head or telling the other kids, “you do whatever he says.” Predictably their response is foot-stomping and “It’s not faaaaiiiiiirrrrr!”

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