What Brown can do for Democrats in examining Gorsuch

At Judge Neil Gorsuch’s confirmation hearing for the Supreme Court, the judge, like all recent nominees, will try to avoid revealing much information about his approach to judging. 

Instead, he will promise not to “legislate from the bench,” to “apply the law and not make it,” not to be an “activist judge,” and not to allow his “personal views” to influence the outcome of cases. 

But this rhetoric of neutrality is a smokescreen that prevents any meaningful discussion of what kind of Supreme Court justice Gorsuch is likely to be. Gorsuch – like all judges – is not a neutral umpire calling balls and strikes, as Chief Justice Roberts famously claimed. 

{mosads}He does in fact have an approach to judging, which the American people have a right to understand before he takes on the extraordinary power of a Supreme Court justice. The challenge for the Democrats will be to get behind the smokescreen. One way the Democrats can do this is by demonstrating that the rhetoric of neutrality has historically been anything but neutral.

For example, the Democrats can point to the role such rhetoric played in Supreme Court confirmation hearings during the late 1950s and 1960s. At the time, Southern segregationists bitterly upset about Brown v. Board of Education and other Warren Court decisions repeatedly complained that the Court was not exercising judicial restraint, that the justices were acting as legislators and were putting in place their own policy preferences, and that they were effectively amending the Constitution instead of applying it.

Nonetheless, today Brown is considered inviolate. Roberts of course agreed that Brown was correctly decided – and I expect Judge Gorsuch will do so as well. (As many have pointed out, no nominee who disavows Brown is likely to be confirmed today.) 

But this shift from controversial to inviolate demonstrates that what people consider to be judicial activism and legislating from the bench is not consistent over time. The Democrats should use Brown to ask Judge Gorsuch why some past claims of judicial activism fade and why, over time, we accept the correctness of some once-contested decisions. They should ask him why he thinks Brown drew those criticisms when it was decided.

Despite the controversy it elicited, Brown was unanimous. But judges of course sometimes disagree with each other. Democrats should ask Gorsuch why that is and what that disagreement means for the rule of law. 

If nothing else, such questions allow them to chip away both at the false and divisive notion, peddled largely by those on the right, and supported by the rhetoric of neutrality, that there are always objectively correct answers to hard questions of constitutional law and at the accompanying implication that judges who do not reach those answers are therefore lawless.

Again, the Democrats can turn to history. At his confirmation hearing, when Roberts was asked about his view of Griswold v. Connecticut, the 1965 case that held that states could not preclude married couples from accessing birth control, he explained that he “agree[d] with the Griswold Court’s conclusion that marital privacy extends to contraception and availability of that.” 

But as the dissenting justices in that case argued, the Constitution does not speak directly to the issue and birth control had been illegal in many states for many years.

What does Judge Gorsuch think about that 1965 disagreement? 

Was one group of justices lawless? 

What made Chief Justice Roberts able to say in 2005 not only that the majority opinion was correct but also that the issue was so unlikely to come before the Court again that he felt comfortable discussing it? (They might also ask Gorsuch whether he agrees with Roberts that Griswold is both correct and well-settled. It is not clear that he does, and a refusal to answer would be a red flag that he may be outside the legal mainstream.)

Democrats have to be careful. In the age of Trump, the rule of law is more important than ever. But acknowledging that different judges, acting in good faith, might take different approaches to, and reach different results in, some hard cases is not to claim that all judging is inherently political.

The law precludes some results altogether. It demands that certain texts – the Constitution, statutes, precedent – be consulted and considered. It requires reasoning, not assertion. And judges indeed are not legislators.

A functioning independent judiciary depends on the respect of the people. That requires us to understand that sometimes judges acting in good faith and doing what judges are supposed to do can reach different conclusions about the same issue. 

But we also must demand that judges themselves acknowledge that reality and talk forthrightly, even at their confirmation hearings, about why some disagreement among judges is inevitable and how their approach to judging might differ from others. 

We can accept the significant power that judges have in part because nomination and confirmation provide some democratic accountability, but that accountability requires candor. 

The judiciary’s legitimacy, then, requires that nominees not be allowed to hide behind meaningless platitudes about neutrality during the only opportunity the American people have to learn about what kind of judge or justice they are likely to be.

Carolyn Shapiro is an associate professor of law and co-director of the Institute on the Supreme Court of the United States, IIT Chicago-Kent College of Law.

The views expressed by contributors are their own and are not the views of The Hill.