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.