By Ramesh Ponnuru
Now that President Donald Trump has nominated Judge Neil Gorsuch to the Supreme Court, Democrats and Republicans will fight over how his confirmation could affect such issues as abortion, religious liberty and immigration. Any conservative judge Trump picked would have set off those arguments.
But conservative judges have lower-profile disagreements among themselves. The selection of Gorsuch tells us a little about what direction conservative legal thinking is taking on three of those issues.
Deference to legislatures: Conservatives have traditionally stood for “judicial restraint.” They believe that judges should uphold legislation unless the Constitution clearly commands them to set it aside. In recent years, libertarians have challenged this view, arguing that restraint really means judicial “abdication” in the face of legislative infringements on liberty.
Restraint paved the way for the growth of government in the New Deal. These libertarians counsel judicial “engagement” instead of restraint. Their argument has won an important convert in the conservative intellectual George Will.
Gorsuch, on the other hand, has not been won over. His opinions and other writings are replete with the rhetoric of restraint. He repeatedly warns of the dangers posed by judges who substitute their judgment for that of legislators. (See, for instance, this Gorsuch tribute to Justice Antonin Scalia after his death.) He has praised the liberals of the New Deal era for respecting judicial restraint. Libertarians who have noticed are unhappy.
Deference to states. The Constitution’s commerce clause gives Congress the power to regulate commerce among the states. Since the early 1800s, the Supreme Court has inferred from that clause that courts should limit how much states can regulate interstate commerce. Even when Congress has failed to push states out of regulatory fields, the courts have sometimes held that they were treading on federal turf.
The doctrine is called the “dormant” or “negative” commerce clause, and it divides conservatives. Justice Clarence Thomas is a skeptic, and so was Justice Scalia. But their opinions have not prevailed, and Justice Samuel Alito has defended the doctrine.
A Gorsuch opinion noted that his court was bound by the Supreme Court’s dormant-commerce-clause jurisprudence, but mentioned the Scalia/Thomas position, seemingly gratuitously. (“Detractors find dormant commerce clause doctrine absent from the Constitution’s text and incompatible with its structure.”) On the Supreme Court, he would not be nearly as tightly bound by the court’s precedents, and he may use his new freedom to take up this cause of the justice he would replace.
Deference to administrative agencies: Conservatives in the Reagan era, including Justice Scalia, championed doctrines that limited judicial second-guessing of the decisions of regulatory bodies. The priority of legal conservatives in those days was to tamp down what they saw as free-wheeling judicial exercises of power.
Since that time, though, conservatives have begun to question whether agencies deserve so much leeway. It is one thing for courts to allow elected legislators to legislate in the many areas the Constitution leaves open to legislative choice; it is another for them to allow unelected regulators, essentially, to legislate, too.
Gorsuch has been a leader in the conservative rethinking of deference to agencies, arguing that too often they exercise executive, legislative and judicial functions at once — and that the Constitution aims to prevent this dangerous concentration of power.
If Gorsuch is confirmed, he is likely to be a vote for deference to state governments and to Congress but not to government agencies. He may also influence a generation of conservatives to think the same way.