Gorsuch – Constitutional originalist, statutory textualist

Feb 20, 2017 (Windy Hill Beach, South Carolina) — Supreme Court nominee Neil Gorsuch was characterized as both a Constitutional originalist and a statutory textualist by The Washington Post in a front page story yesterday. Here’s the most relevant excerpt:

In the weeks since Gorsuch was nominated for the Supreme Court, his judicial philosophy has been widely compared to Scalia’s. Like Scalia, Gorsuch is a proponent of originalism — a belief that judges should try to interpret the Constitution’s words as they were understood by its authors. But more importantly when it comes to laws, Gorsuch, like Scalia, is a textualist, who believes that only the actual words written in a statute matter — not legislators’ intent or any potential consequences of a judge’s decisions.

Gorsuch spelled out his philosophy in his colorful conclusion on the case of the 13-year-old fake burper*.

“Often enough the law can be ‘a ass — a idiot,’ ” he wrote, quoting Charles Dickens. “And there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels.”

That approach has drawn its share of detractors, especially among liberals.

“The argument of originalists like Gorsuch is always ‘Well, I’m just following the law.’ But it’s intellectually dishonest to pretend you can somehow divine the original founders’ intent,” said Ayesha Khan, a former longtime legal director for Americans United for Separation of Church and State who has written many amicus briefs in cases ruled on by Gorsuch.

“It’s also a notable coincidence that the originalist, textualist philosophy always paves the way for religious messages by government or strikes down efforts to protect women’s reproductive rights,” Khan said. “It’s a way of rationalizing activist tendencies.”

Put more succinctly, Nan Aron of the liberal Alliance for Justice said, “In spite of what the White House would like to have us believe, he’s a dangerous choice.”

Excerpted from: Kimberly Kimby et al., “Gorsuch reliably right, but intensely attentive“, The Washington Post, Feb 19, 2017, p. A1

* Here’s how Gorsuch began that opinion in case of 13-year-old arrested for fake burping: “If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer.”

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