Neil Gorsuch is now a Supreme Court Justice. He joins a man he once clerked for, Justice Kennedy — first time a Justice’s clerk has sat on the High Court with a Justice he once clerked for.

Much has been made of Gorsuch’s alignment, jurisprudentially, with the late Justice Scalia. But what if Gorsuch actually feels more drawn to Kennedy’s methods ? Scalia is not there in the deliberation room, Kennedy is; and Kennedy, as we have seen, is moved by the actually litigants before him as much, if not more than, by the issues their disputes present. Would it not be fitting if Gorsuch found himself persuaded to follow Kennedy’s judicial course ?

We have no idea, really, if Gorsuch in his new role will continue the strict construction method he has applied as a Circuit Court judge to statutes and administrative regulations. As a Circuit Court judge, he is subject to being overruled and thus to avoiding novelties. He often writes, in his Circuit opinions, about the need to stick to High Court precedent. As a Justice, he won’t need to be thus bound. He will be able to set precedent.

How flexible will his High Court opinions be ? Probably not as flexible as they might be, were Justice Oliver Wendell Holmes in the deliberation room. We badly miss Holmes’s awareness of the entire history of the common law upon which our Constitution’s precepts rest. I only wish that Justice Gorsuch could hear Holmes speak the words of his masterly dissent in the famous case Lochner v. New York (1905):

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer‘s Social Statics. The other day, we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U. S. 11. United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Northern Securities Co. v. United States, 193 U. S. 197. Two years ago, we upheld the prohibition of sales of stock on margins or for future delivery in the constitution of California. Otis v. Parker, 187 U. S. 606. The decision sustaining an eight hour law for miners is still recent. Holden v. Hardy, 169 U. S. 366. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

How would Gorsuch, with his strict construction opinion of the law, respond to Holmes’s argument ? Holmes’s conclusion, remember, is to uphold the law at issue, not overrule it. That is judicial restraint, albeit, in Holmes’ sarcastic sentences, strictness which doubtless he enjoyed applying against the activism of the majority decision.

Gorsuch wrote a concurrence in the Hobby Lobby Stores, Inc. v. Sebelius in which he also upheld a statute, the so called Religious Freedom Restoration Act (RFRA), the law upon which the owners of Hobby Lobby relied to justify their refusal to permit employees enrolled in the corporation’s health plan to access certain contraception devices to which they objected on religious grounds “sincerely held.” Gorsuch’s opinion has become one of the bulwarks of those who opposed his confirmation; yet his result is the same as Holmes’s: to confirm the statute at issue.

Gorsuch as a Circuit Court judge did not paint the context of his Hobby Lobby, Inc. opinion with a brush broad like Holmes’s. It was enough for him that the owners of Hobby Lobby had proved the sincerity of their religious belief and thus the applicability of the RFRA to their case. But might Gorsuch, now, as a Justice, speak more generally of the RFRA, and say, analogous to Holmes’s words, that the act must be upheld because it does not “infringe fundamental principles as they have been understood by the traditions of our people and our law” ?

I sincerely hope that Gorsuch always keeps these words of Holmes in his mind when writing an opinion. That said, the RFRA is not as easy to dispose of, or to uphold, as the labor law that Holmes decided to uphold. The RFRA is written upon a First Amendment as ambiguous as any part of our Constitution. It bars Congress (and the States too, via the 14th Amendment) from enacting any establishment of religion, but it also prohibits interference with the “free exercise” of religion. These sound good, but the devil is indeed in the details. Is it “free exercise of religion” for a person to exercise his religion against the interest of an employee enrolled in his health plan ? The RFRA says that it is. The First Amendment does NOT bar individuals from doing what the owners of Hobby Lobby, Inc. did; but why does it NOT bar Congress from enacting a law that sanctions it ?

The question has become as religiously political as the majority;’s opinion in Lochner had become economically political. There lies the trap for Gorsuch, from which the words of Holmes offer him safe escape.

To the question I asked in the paragraph two prior, Holmes’s words provide an answer inapposite. It is one thing to uphold a statute that alters the law of contract, the parameters of which is not a subject of Constitutional precept. It is quite another to opine upon a statute that squeezes within the ambiguities of the First Amendment. Ambiguity provides Justices with a world of discretion. Gorsuch will need to be extremely careful, in cases arising under ambiguous Constitutional guidelines, not to arouse a whole lot of of sleeping dogs — many of them, in the case of religion issues, deplorably politicized these days — that the Constitution lets lie.

NOTE : those who want to study the jurisprudence of Holmes more fully can read HERE : https://www.theobjectivestandard.com/issues/2009-summer/justice-holmes-empty-constitution/

— Mike Freedberg / Here and Sphere

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