From the fine SCOTUSblog, this (although I WISH everyone would stop using the macro “brilliant Scalia”. I didn’t think he was brilliant, for a heap of reasons, but especially for inventing “originalism.” You know, that concept of interpreting the Constitution as it was written, i.e., incorporating slavery and all sorts of citizens, including women, not being able to vote. Et cetera, et cetera and so forth.)
And Gorsuch, as this analysis makes clear, is a Scalia “originalism” acolyte. You didn’t hear that deep sigh I just heaved.
I did a bit of [angry] bolding, just to help you out.
Posted: 03 Mar 2017 11:37 AM PST
There will never be another Antonin Scalia. When he died on February 13, 2016, the brilliant and pugnacious jurist left behind a legacy that included almost singlehandedly bringing originalism – the idea that the Constitution should be interpreted according to what it meant when it was adopted – to the forefront of legal debate, both at the Supreme Court and more broadly. Accepting the nomination to fill the vacancy left by Scalia’s death, Judge Neil Gorsuch spoke for many when he called Scalia “a lion of the law.”
Like Scalia, Gorsuch describes himself as an originalist: In a 2016 speech at Case Western Reserve University, he told his audience that judges should interpret the Constitution and the law “by focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.” But, if he is indeed confirmed, what effect will Gorsuch have on specific areas of the law? Last fall we hosted a symposium in which 25 different authors took closer looks at the effect that a hypothetical conservative or liberal nominee to replace Scalia might have on high-profile issues like reproductive rights, the First Amendment and class actions.
With confirmation hearings for Gorsuch scheduled to begin on March 20, we are no longer operating in the abstract. In his ten years on the U.S. Court of Appeals for the 10th Circuit, Gorsuch has still not weighed on all of the topics that we covered in last year’s symposium – including, for example, affirmative action, abortion and gun rights. But there is still plenty to learn about his jurisprudence and views on other topics, and how those views might compare with Scalia’s. Today we will kick off a series of posts by blog staffers and lawyers from the law firm of Goldstein & Russell, P.C., that will examine those views in greater depth and, we hope, provide a better sense of how Gorsuch might change the court, if at all.