In Print and Kindle Creating the Declaration Of Independence

Justice Gorsuch and the Rule of Law in His Own Words

Gorsuch“It is the role of judges to apply, not alter, the work of the people’s representatives.” Circuit Judge Neil Gorsuch, January 31, 2017

(After his nomination on January 31, 2017, Neil Gorsuch was confirmed by the Senate on April 7, 2017.  The title of this piece was altered to reflect that.)

Over the next few months there will be a great battle over President Trump’s nomination of Judge Neil Gorsuch to sit on the United States Supreme Court.  Much will be made of whom Judge Gorsuch will side with on policy issues. The debate will be misplaced, since courts are not to be policy makers.

Judge Gorsuch has been quickly labeled a “conservative”.  Defining a “judicial philosophy” as liberal or conservative is convenient, but improper. The appropriate question asks if the individual has respect for our country’s most basic principle:  the rule of law.

the-rule-of-law-webWhat is the Rule of Law?

The rule of law is the idea that a person should not have his property or liberty taken by government except by pre-existing law and procedures. Established procedure and law must be in place before someone suffers a loss at the hands of the government. Once the laws and procedures are in place, the judgment as to whether they have been followed is to be done by an impartial third party.

If we are to be a nation of laws, then the Congress should legislate, the President should execute and the judiciary should apply the law.  Efforts to demonize Gorsuch will be misplaced.  If the energy were put into winning converts to a particular point of view, and then elections, followed by legislation that follows the Constitution, there would be no need to battle over Gorsuch.  He will apply the law as it was written.

Reading the work of Judge Gorsuch, it is clear that this is where his belief lies. What follows are quotes from his work on the 10th Circuit Court of Appeals.  His respect for the rule of law is a continuing theme.[1]   These quotes indicate that he will follow both constitutional and statutory law as written.

Yellowbear v. Lampert

“… the government has a compelling interest in not subjecting citizens to laws they can’t realistically avoid breaking.”

US v. Nichols (in dissent) 

“If the separation of powers means anything, it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce.”

Article I § 1 provides that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States.” U.S. Const. art. I, § 1.”

“…the framers of the Constitution thought the compartmentalization of legislative power not just a tool of good government or necessary to protect the authority of Congress from encroachment by the Executive but essential to the preservation of the people’s liberty.”

“By separating the lawmaking and law enforcement functions, the framers sought to thwart the ability of an individual or group to exercise arbitrary or absolute power.”

“…ours is supposed to be an independent judiciary making decisions on the legal merits without respect to the vagaries of shifting political winds.”

US v. Carloss 

“The founders understood, too, that a “search” of a constitutionally protected space generally qualifies as “unreasonable” when undertaken without a warrant, consent, or an emergency.”

“…the Fourth Amendment, at a minimum, protects the people against searches of their persons, houses, papers, and effects to the same degree the common law protected the people against such things at the time of the founding…”

“…obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits. Neither, of course, is it our job to weigh those costs and benefits but to apply the Amendment according to its terms and in light of its historical meaning.”

“Our duty of fidelity to the law requires us to respect … requires us to respect the ancient rights of the people …”

US v. Games-Perez 

“People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime.”

“There can be fewer graver injustices in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land.”

“When the current statute’s language is clear, it must be enforced just as Congress wrote it.”

“…in our legal order it is the role of the courts to apply the law as it is written…”

hobby lobbyHobby Lobby v. Sebelius

“…it…is not, the place of courts of law to question the correctness or the consistency of tenets of religious faith, only to protect the exercise of faith.”

“…it is not for secular courts to rewrite the religious complaint of a faithful adherent…”

Gutierrez-Perez v. Lynch 

“Neither … can we think of a sound reason why persons should be left in worse shape simply because they are the subjects of delegated legislative action rather than subjects of true legislative action.”

“The Federalist No. 78 (Alexander Hamilton) “[L]iberty can have nothing to fear from the Judiciary alone” but “ha[s] everything to fear from [the] union” of the judicial and legislative functions.”

_____________________________________________________________________________________________________________

[1] These, of course are selected.  Readers are encouraged to read these and other opinions of Judge Gorsuch, and make their own decisions, rather than rely on the shorthand that is found in news stories and other analyses.

Comments

For Further Reading

Amazon