Monday, October 14, 2019

Justice Neil Gorsuch: Hubris Masquerading as Modesty

By Eric Segall

Last Tuesday, the Supreme Court heard three cases raising the issue whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination "on the basis of sex," protects gays, lesbians, and transgender persons. During the oral argument, Justice Neil Gorsuch conceded that the textual issues were very close and then asked Professor David Cole, one of the plaintiffs' attorneys, whether a judge should "take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that -- that Congress didn't think about it ...  That's it. It's a question of judicial modesty."

This paen to "judicial modesty" is consistent with many passages in Gorsuch's new book, "A Republic If You Can Keep It," which I reviewed here. For example, in that book, Gorsuch says he has two rules for his law clerks: 1) "Don't make stuff up," and 2) "When people beg, and say, ‘Oh, the consequences are so important,’ and when they say, ‘You’re a terrible, terrible, terrible person if you don’t,’ just refer back to Rule No. 1. And we’ll be fine." Recently Gorsuch also said that the founding fathers didn't want "nine old people in Washington sitting in robes telling everybody else how to live."

This rhetoric about modesty and deference, however, comes from a man who has already shown that he has no problem telling both the American people, and the states themselves, how they should govern their lives and their citizens even when constitutional text and its history do not suggest that judges should overturn the decisions of more accountable political officials.


In Trinity Lutheran v. Missourithe issue was the constitutionality of a Missouri constitutional amendment providing the following:
That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.
This amendment, enacted in the nineteenth century, has similar counterparts in more than half the states. 

The case involved a Missouri program that offered grants to schools to use recycled tires to make safer playgrounds. Pursuant to the state's bar on public money being used for the aid of religious institutions, a religious school that applied for the grant was told it could not receive the money. Even though a new election brought a new Governor and a change in policy, the Court held the case not to be moot and said the amendment as applied in the case violated the Free Exercise Clause. 


There are hard issues raised by state amendments and laws that prohibit all public aid to religious institutions. On the one hand, states have a legitimate, maybe even a strong, interest in avoiding official entanglements with religious institutions, and although states are allowed to aid the secular functions of religious schools under the Establishment Clause, historically they have not been required to do so just because they assist private non-religious schools (there's a case raising this issue this term). On the other hand, overt discrimination against religious institutions for all purposes of government funding raises issues of equality and discrimination. Where the Court should draw the line in these cases is no easy matter.


Perhaps because these questions are so difficult, the Court's plurality opinion, written by Chief Justice Roberts for himself and Justices Alito, Kagan, and Kennedy, contains the following important disclaimer: "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination." This limitation made sense given the variety of different contexts the no-funding rule implicates and the numerous states that impose such a rule. A holding that states must equalize taxpayer-funded benefits between religious and non-religious groups in all settings could cause havoc across the United States.


Given that narrowing footnote, the case has (or should have) virtually no precedential value. This is where Justice Gorsuch and his judicial hubris comes in. He wrote a concurring opinion that was remarkable for several reasons. First, as I have observed before, neither his nor Chief Justice Roberts' opinion contains a word about the original meaning for the Free Exercise Clause. Given Gorsuch's oft repeated diatribes about the importance of originalism to constitutional interpretation, his willingness to overturn the laws of more than half the states--many enacted over a century ago--is anything but an example of judicial modesty. One would have thought he would have at least tried to justify his vote with reference to the original meaning of the Free Exercise Clause, but he did not.

Even worse, while the plurality was obviously troubled by the potential breadth of its decision and how it might apply to other difficult cases involving the separation of church and state, Justice Gorsuch wasn't so modest. Explicitly saying that he disagreed with the plurality's limiting footnote, Gorsuch wrote that "the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else." This effort to enlarge the scope of the holding of the case to myriad other problems of church/state relationships, in the absence of  clear precedent or originalist evidence is pretty close to just "making stuff up."

Justice Gorsuch's judicial hubris was also on display in Janus v. AFSCME, holding that the First Amendment prohibited states from requiring non-union public employees to pay partial union dues. Almost half of the states had such laws. Moreover, in 1977, the Court had upheld these laws. Gorsuch did not write separately but joined Justice Alito's opinion without reservation. The opinion directed state governments to structure their relationships with their own public workers according to the Justices' preferences. No one expects judicial modesty from Alito, but Gorsuch should not have voted to interfere so dramatically with essential state governmental functions, given the absence of any originalist justification for doing so and in light of a previous Supreme Court case to the contrary. The case was 5-4, so had Gorsuch embraced a modest stance, the decision would have come out the other way.

It is one thing for Supreme Court Justices to aggressively reverse decisions made by other political actors when the Justices publicly adopt a strong position on the Court's role in our representative constitutional democracy, as some Justices do. But it is quite another for Justice Gorsuch to talk the talk of modesty, deference, and originalism, and then then walk the walk of extreme judicial assertiveness. That is hubris, not modesty, and suggests he might stray from his alleged textualism and vote that Title VII doesn't mean what it says solely because of his personal views on alleged "social upheaval" rather than text and law, which flatly contradicts his alleged second rule for law clerks discussed above.