Aug 06

Gorsuching the Supreme Court

In Brief — The author discusses how Neil Gorsuch might affect the Supreme Court and what conservatism and originalism mean. There’s a little on religion, too. [Written in April 2017.]


Backward, O, Backward Goes SCOTUS in Time —

Betcha don’t know what Conservative means. Since you may not know that, you probably have no idea what an Originalist philosophy is. Or what the Federalist Society is or does. Now’s your chance if you choose to stick with me.

Everybody — well, almost everybody — knows that the Supreme Court (SCOTUS) is the highest court in America. The nine justices who make up SCOTUS set the legal tone for all the courts in the land, they determine whether both houses of congress are legislating according to SCOTUS’s interpretation of the constitution and they tell the president and the executive branch under his/her control whether their actions are proper or not. Simply stated, SCOTUS has a lot of power.

Senator Mitch McConnell and his controlling Republican colleagues refused for ten months to grant a hearing to President Obama’s well-qualified moderate nominee, Merrick Garland. As if that weren’t enough, Sen. McConnell said that even if a Democrat were elected president, they would refuse to grant Garland or anybody not to their liking a hearing as long as the Republicans were in control. It was unprecedented in history. That inaction has rightly been referred to as “theft.” In practical effect, any nominee must be a partisan lackey to be approved. SCOTUS will be a partisan tool.

Now you might think that the Senate was duty bound to judge if Merrick Garland was qualified or not. Wrong! The founding fathers said it was the duty of the Senate to “advise and consent” on a president’s nominee, but it never occurred to them to mandate a hearing.

Conservative, Originalist and Gorsuch —

Way back at the beginning I promised to tell you what Conservative and Originalist mean. I’ll also tell you how Neil Gorsuch fits into the picture.

Conservative is defined as holding traditional values and opposed to change. One is conservative if s/he clings to the usual way things have always been done. For example, the Republican Party is proudly attached to the past and averse to new ways, particularly if they can be interpreted as socially advanced.

Originalist is defined as being attached to the way the constitution was interpreted by the founding fathers when it was written in the Eighteenth Century. That is, the three branches of the government must be guided by what the founding fathers intended when they wrote the constitution. Put clearly, Eighteenth Century thinking must guide Twenty-first Century actions.

How does Neil Gorsuch fit into all this? Keeping in mind that Neil Gosuch was nominated by Trump and forced on America by Sen. Mitch McConnell and his Republican colleagues, Neil Gorsuch is both conservative and an originalist. He is a member of the Federalist Society, a conservative group whose prime mission is reported to be to populate all levels of government at both the federal and state levels. Interestingly, like his conservative colleagues on SCOTUS, Gorsuch is a Catholic although he attends an Episcopalian church with his wife. More on the religious element in a moment.

During the hearings in the Senate — hearings denied to Merrick Garland by the Republicans — Neil Gorsuch frustrated the Democratic senators by essentially responding with non-answers. The hearings produced nothing that would allow senators to evaluate his positions. During the hearings, Gorsuch was a black box, but his record on the 10th Circuit bench shows his originalist conservative roots.

Religion Reveals Thinking —

The First Amendment to the Constitution states that there can be no religious impediment to holding public office. I’m compelled to add that despite this, atheists are still barred from public office in many states. Furthermore, it is nearly forbidden to mention the religion of an officeholder. Nevertheless, I point this out because it affects the thinking of SCOTUS justices.

Although as many as 98% of Catholic females use contraceptives and many have abortions, the official doctrine of the Roman Catholic Church is opposed to both contraception and abortion. All of the conservatives on SCOTUS are devout Catholics: Roberts, Alito, Thomas, Kennedy and now Gorsuch. How does this affect the rulings of the justices?

SCOTUS will hear cases that touch on religion. It’s not likely that the Catholic conservatives will accept reality and change or that they will ignore their religious beliefs. Thus, America will be ruled by the Roman Catholic Church.

We know from his earlier holdings that Gorsuch will favor big business, so it’s fair to say that SCOTUS will move to the right. And what will happen when more liberal justices retire or die?

America will likely become a partisan Republican instrument in the foreseeable future. The voters can put a dent in that future in 2018 and 2020. Will they?

NOTE! Before this piece ends, it’s important that you know that SCOTUS also decides whether a convicted criminal should be executed or not. Well, the answer is that newly appointed Justice Neil Gorsuch has just let us know that he supports the macabre death penalty. In this emergency case deciding whether the man must die (he was executed by Arkansas on April 21) Justice Gorsuch joined fellow conservatives in a 5-4 decision to kill the man. Did I mention that the man was black, he was considered mentally retarded, he was poorly defended by his drunk lawyer, AND the now-dead man had maintained his innocence from the beginning? In the several cases in which Gorsuch has now participated, he hasn’t disappointed his right-wing supporters. His votes make conservatism look positively liberal. So much for the Constitution. This is the real Justice Neil Gorsuch.

The Weekly Sampler—

As a reminder, go to the Archives on the right side of the page and click on the month and year of that week’s featured Sampler. If you wish, go to the January 15, 2017, blog (“A Simple Reading Assignment”) for more thorough instructions.

If you want to read the entire piece, simply click on the box titled “Continue Reading.” When you want to read the next piece, simply swipe your cursor across the one you have been reading and you will find the next one. Do this every time you want to read the next piece.

Don’t miss the Comments and my replies. Even though the Sampler pieces are from the past, feel free to comment…or not.

Go to the Archives on the right side. Click on January 2016.



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    • Donna Boe on August 7, 2017 at 04:51

    I knew that Gorsuch would not be my idea of a good Supreme court justice, but now I fear he may be a terrible choice for SCOTUS.

    I’m not sure that being a Catholic necessarily means you are a political conservative, (I have Catholic friends that are quite liberal), but perhaps that is true in the judges at the SCOTUS.


      • Don Bay on August 7, 2017 at 07:10

      Yes, there are lots of liberal thinking Catholics and yes, Pope Francis has said several liberal things, but the Roman Catholic Church is grounded on backward and illogical premises. To abandon them is to mean the end of Catholicism.

      You will note in the piece that substantial numbers of purportedly Catholic women use contraceptives and have abortions. That underlines the fact that most Christians — and that includes Catholics — are “cafeteria Christians,” which means they accept only those elements of the religion that mesh with their thinking.

      Gorsuch is a true Catholic as we can see from his early performance on SCOTUS. Like way too many religionists, he loves the death penalty. Reflect on the holding (5-4) and realize that all of the Catholic conservatives voted to execute the man despite questionable evidence. Does that jibe with valuing life and the contraceptive position of Catholicism?

      While there is a liberal Catholic on SCOTUS, it means only that she may be a cafeteria Catholic. Gorsuch isn’t. You almost hit the nail on the head by observing that Gorsuch “…may be a terrible choice for SCOTUS.” He IS a terrible choice.

  1. As Sonna points out, we’ve had some radical catholics, including some noteworthy priests, who are/were decidedly not conservative. That said, the Catholic church has caused a lot of harm with it’s conservative doctrines.

    Thanks for the political lesson. Where is the Warren court when we desperately need them? I wonder if we’re ever to see their like again.

      • Don Bay on August 8, 2017 at 07:04

      Please see my response to Donna’s comment. There’s no question that there are many liberal Catholics, but Gorsuch is not one of them.

      Given Ginsburg’s age, speculation about Kennedy’s retirement and congressional control by Republicans, it’s unlikely that SCOTUS will ever be liberal again, certainly not for a generation or more. There’s a chance that liberal changes in society may sway some conservative justices to vote for liberalization, but Gorsuch won’t soften his conservatism.

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