Judge Gorsuch and What Could Have Been

[Weird Tolkienish Figure]

http://washingtonmonthly.com/2017/03/28/judge-gorsuch-and-what-could-have-been/

Of course, a liberal Court, would have been likely to reverse Citizens United. More importantly, it might have revisited an earlier, even more pernicious precedent, Buckley v. Valeo, the 1976 case that established that money is a form of speech. Now, if the Democrats ever do regain legislative majorities and pass campaign finance reform — say, at some point in the next twenty years — a conservative Court will cite Buckley and Citizens United to strike it down.

At some point, a center-left Court might have declared education a “fundamental” right.  In Rodriguez v. San Antonio School District, a 1974 case, the Supreme Court ruled five to four that no such right existed under the Constitution, meaning public school children in different districts had no claim to equal state funding. Forty years later, in a far different world, there is even more reason to declare education a fundamental right. The enshrining of a constitutional right to public education would have been monumental. But now?  It’s out of the question.

Or consider race discrimination. The 1976 decision in Washington v. Davis held that laws with racially discriminatory effects don’t violate the Equal Protection Clause of the Fourteenth Amendment as long as they don’t have a discriminatory purpose. In 2001, in Alexander v. Sandoval, the Court applied the same reasoning to narrow minorities’ ability to sue under Title VI of the Civil Rights Act. A liberal majority could have reversed those decisions and made it easier for victims of discrimination to have their day in court. Instead, a center-right Court will continue with the status quo, and may well dismantle what’s left of the Voting Rights Act.

Under a center-left court, we may have been able to make progress on gun control. Though federal law makes it impossible to sue firearm manufacturers, there could have been a chance to sue state and local governments under the same Title VI if their lax regulation of dealers had a discriminatory effect on African-Americans. Or if lax policies led to high levels of violence that traumatize young children — and create mental and emotional handicaps —these governments could have faced liability under the Americans with Disabilities Act.

The death penalty would have been gone. To the young who wonder what the late 1960s were like, here’s what I sometimes say: No one was being executed. The liberal Warren Court had the death penalty on hold, and was about to kill it.

We could have hauled corporate America back into court. A center-left Court would have stopped the use of arbitration clauses that bar class actions against them. All kinds of federal and state laws — now dormant and impossible to enforce by consumers — would have sprung back into effect. Had Clinton won and replaced Scalia with a liberal justice, private lawsuits would have done more to punish Wall Street than putting in a Torquemada to head the SEC.

A labor movement might have come back, or at least survived. The Court could have reinterpreted the Wagner Act to allow “members only” bargaining. That is, a union could have the right to bargain at least for those who want to join, whether the union is the exclusive representative or not. Without a right to collect dues when it is “exclusive” representative, and without a right to bargain when it is not, what’s left of the labor movement now will get even smaller. Thanks to Trump’s victory, it is a near certainty that the conservative Court will make “right to work” the law of the land.

Finally, what might have been the biggest change: the country’s best judges in the lower courts would know that if they did the brave and bold thing, the Supreme Court would have their backs. I know liberals are currently giddy about federal injunctions against travel bans, and applauding the power of an independent judiciary. But hundreds of Trump judges will soon be on the bench. The notion that such an independent judiciary will be a check on tyranny will seem far less plausible in a year, let alone three.

Thank you for reminding me why I voted Trump.

[Maj. Bill Martin]

 

This stuff alone was why I had to vote for the guy.  Despite all those claiming that his list of candidates was a lie that he'd abandon and would appoint a liberal instead.... 

[montanajoe]

While I think this is a great pick, I would caution that those who think Gorsuch will be another Scalia may ultimately be disappointed. He is far more likely to be a Roberts clone and I think the Court moving forward will be far less likely to take up the contentious social issues and undo legislation eg the ACA.  He like Roberts, is a conservative Jurist and not necessarily a political conservative...a fact that may eventually disappoint those who believe the two are synonymous.....

[Weird Tolkienish Figure]

While I think this is a great pick, I would caution that those who think Gorsuch will be another Scalia may ultimately be disappointed. He is far more likely to be a Roberts clone and I think the Court moving forward will be far less likely to take up the contentious social issues and undo legislation eg the ACA.  He like Roberts, is a conservative Jurist and not necessarily a political conservative...a fact that may eventually disappoint those who believe the two are synonymous.....

Well never have another Scalia. Gorsuch is nominee we have, not the one we want, but far better than whoever Hillary would have nominated.

[libertybele]

This stuff alone was why I had to vote for the guy.  Despite all those claiming that his list of candidates was a lie that he'd abandon and would appoint a liberal instead....

Gorsuch has not been seated yet and even though the nuclear option has been discussed, I don't have a whole lot of confidence in McConnell nor do I trust that RINO's.

[geronl]

Well never have another Scalia. Gorsuch is nominee we have, not the one we want, but far better than whoever Hillary would have nominated.

Maybe, but it's too early to tell. He did say that gay marriage and abortion are "settled law" didn't he?

[libertybele]

Maybe, but it's too early to tell. He did say that gay marriage and abortion are "settled law" didn't he?

Yes.  I believe so.

[skeeter]

Maybe, but it's too early to tell. He did say that gay marriage and abortion are "settled law" didn't he?

Of course they are. At least until someone with a case and standing challenges them.

Its the only answer he could've given to avoid the media circus.

[geronl]

Of course they are. At least until someone with a case and standing challenges them.

Personally, I don't consider court rulings to be law. The Supreme Court might have power to declare laws unconstitutional but it was never given any power to make laws.

[rodamala]

http://washingtonmonthly.com/2017/03/28/judge-gorsuch-and-what-could-have-been/

Thank you for reminding me why I voted Trump.

[Weird Tolkienish Figure]

I'm no trump fan. Half the people hate my guts on here due to my criticism of the orange menace. Still, think of a liberal majority court right about now. Way worse imo.

[Frank Cannon]

http://washingtonmonthly.com/2017/03/28/judge-gorsuch-and-what-could-have-been/

Thank you for reminding me why I voted Trump.

Really? You sound like a Hitlary voter with all the belly aching you do about Donny.

[libertybele]

Personally, I don't consider court rulings to be law. The Supreme Court might have power to declare laws unconstitutional but it was never given any power to make laws.

Bingo.  The Supreme Court can only interpret the law according to the Constitution of the United States.  They cannot make laws and shouldn't rule on any law other than its relationship to the Constitution.

[Weird Tolkienish Figure]

Really? You sound like a Hitlary voter with all the belly aching you do about Donny.

Nope. Sorry you can't handle it lil Frankie.

[skeeter]

Personally, I don't consider court rulings to be law. The Supreme Court might have power to declare laws unconstitutional but it was never given any power to make laws.

Of course not. I do not believe Gorsuch was claiming that they do. Only that congress has passed a law that has not yet been overturned on Constitutional grounds.

[bigheadfred]

Gorsuch has not been seated yet and even though the nuclear option has been discussed, I don't have a whole lot of confidence in McConnell nor do I trust that RINO's.

Right. Congress is the problem.

[Mom MD]

http://washingtonmonthly.com/2017/03/28/judge-gorsuch-and-what-could-have-been/

Thank you for reminding me why I voted Trump.

I voted for him too but only because Hillary was so much worse   That doesn't mean I won't be unhappy with his liberal moves or criticize the things that need criticizing   For me the biggest might have been would be that we actually had a chance to elect a real constitutional conservative this year and blew it on a populist liberal

[bigheadfred]

I voted for him too but only because Hillary was so much worse   That doesn't mean I won't be unhappy with his liberal moves or criticize the things that need criticizing   For me the biggest might have been would be that we actually had a chance to elect a real constitutional conservative this year and blew it on a populist liberal

A real constitutional conservative would face even more opposition from the majority of congress now than you are seeing with Trump.

[Right_in_Virginia]

President Donald Trump talks about the importance of a good and fair Supreme Court and the necessity of Judge Neil Gorsuch on the Bench as replacement of the "late, great Antonin Scalia".



http://www.youtube.com/watch?v=YsSWA0Apv0g



Golden State Times/YouTube

https://www.youtube.com/watch?v=YsSWA0Apv0g

[Mom MD]

A real constitutional conservative would face even more opposition from the majority of congress now than you are seeing with Trump.

True, but hopefully they would have stood stronger on principle that trying to cut deals with whomever would play ball....

[bigheadfred]

The problem I have with SCOTUS, and every other judge out there, is there shouldn't be "liberal" or "conservative" judges. Just judges. Their opinions should reflect law and not their politics.

[Maj. Bill Martin]

The problem I have with SCOTUS, and every other judge out there, is there shouldn't be "liberal" or "conservative" judges. Just judges. Their opinions should reflect law and not their politics.

The "conservative" label applied to judges is usually misleading.   Originality/textualist are often referred to as "conservative" by an ignorant/lazy media.

Gorsuch is a hardcore textualist, which is good for political conservatives generally - though not always.

For people who believe judges should interpret the law fairly rather than pushing their own beliefs (liberal or conservative), he's a home run.

[bigheadfred]

The "conservative" label applied to judges is usually misleading.   Originality/textualist are often referred to as "conservative" by an ignorant/lazy media.

Gorsuch is a hardcore textualist, which is good for political conservatives generally - though not always.

For people who believe judges should interpret the law fairly rather than pushing their own beliefs (liberal or conservative), he's a home run.

Bad law equals bad court decisions. So the impetus would be to wrangle with the writer(s) and not the interpreter(s).