President Trump has nominated a new Supreme Court Justice – Judge Neil Gorsuch of Colorado. In doing so, The President once again rhetorically focused on the doctrine which “conservatives” have historically preached from whatever hilltop perch they could find in words which former D.C. Court of Appeals Judge Robert Bork articulated in his book, The Tempting of America.
Those words prescribed that what a judge should do when interpreting the Constitution is to determine “how the words used in The Constitution would have been understood at the time of enactment.” This is the “Doctrine of Original Intent” or as it is known “Originalism.” It is sometimes confused ironically by “Conservatives” with “The Legal Process School” of jurisprudence which emphasizes that the law should be interpreted in accordance with “neutral principles” derived from the text of The Constitution, statutes, and appellate court opinions with precedential value. They are not the same.
In fact, Originalism makes such a cause out of the intent of the framers that Bork, in his book states unequivocally that “no person should be nominated or confirmed for the Supreme Court who does not display both a grasp of and devotion to the philosophy of original understanding.” Let us hope for Judge Gorsuch’s sake that a majority of U.S. Senators who must confirm him to replace Justice Scalia didn’t read Judge Bork’s book, or forgot about it if they did read it, or aren’t prepared to follow his dicta anyway. That is because there is no evidence that any Court in this country, including the Supreme Court, or even any individual Supreme Court Justice, including Justice Scalia has ever consistently been originalist in its thinking and decisions.
No, the record of Judge Gorsuch to the extent that I can discern it is that his instinct is to follow the principles of the “Legal Process School” or “Textualism” which as I have said is different from “Originalism.”
Both of these judicial philosophies do, however, subscribe in different ways to the belief that process is more important than results in interpreting the law. The “Legal Process School”, Textualism or Formalism, presupposes that “neutral principles” can always be discerned and then applied to new circumstances correctly and consistently to guarantee fairness and stability. The “Doctrine of Original Intent”, Originalism, requires that the law be interpreted in accordance with the intent of the founders. It is premised on the proposition that “original intent” can always be divined by “wise judges”, who can then apply it to new circumstances. This process will, in turn, it is believed, produce a result in every case consistent with what the founders would have wanted to happen in that circumstance or case.
This writer, based on his experience on three different trial courts over a period of over 35 years and a limited number of special assignments on Maryland’s intermediated appellate court does not share the confidence of the academicians, legal writers, and limited number of judges who repose almost unlimited confidence in the ability of “wise judges” to discern what the intent of the founders would have been in new circumstances unheard of indeed, unimaginable in their day. Nor do I attribute infallible logic and interpretive skills to those same “wise judges” on both our trial and appellate courts to divine sacred “neutral principles” from the texts of statutes written by popularly elected legislators, governors, Presidents and their staffs, as well as opinions written by their predecessor, “wise judges” on our Federal and State appellate courts.
That said, I do recognize that the justification, indeed the almost religious fervor with which those academicians and legal writers as well as the politicians who latch on to their adherence to these two judicial philosophies, feel that it is necessary to curb judicial discretion in order to keep unelected judges from seizing power from the people’s elected representatives. This is what you constantly hear on the campaign trail in both state and federal elections. Naturally it was echoed at the staging of Judge Gorsuch’s nomination.
As Judge Richard Posner, himself a relatively conservative appellate jurist and other legal writers have pointed out, there is no legal experience or evidence to support the proposition that this is the choice. In fact, as Posner illustrates and Legal writer, Ronald Dworkin says, “The question posed by an originalist versus an activist or pragmatic judiciary is not one of democracy or no democracy, but of the kind of democracy we want.”
The kind of democracy we will have will result from whether we choose originalist and/or textualist judges or alternatively pragmatist judges, such as the originator of
the judicial philosophy of “Legal Pragmatism,” Supreme Court Justice Benjamin Cardozo and its most illustrious modern day practitioner, Judge Richard A. Posner.
Pragmatists believe that legal rules should be viewed as instruments of justice. As Cardozo says and Posner emphasizes, “Few rules in our time are so well established that they may not be called upon any day to justify their existence as a means adopted to an end. The function of law is to ensure justice and equilibrium. The origin of the law is not the main thing – the goal is. There can be no wisdom in the choice of legal path unless we know where it will lead. Where are you – what kind of democracy you want – Judge Gorsuch?