The Politics of Law


I have spent the last couple of days learning about Judge Gorsuch. I am not a lawyer, and I do not pretend to be one. While I like, in my own amateurish way, his views on the Chevron Deference and the Fourth Amendment, I do not feel qualified to discuss such legal matters in this forum. But since my job here is to explain conservative thought, I absolutely feel qualified to explain how conservatives approach the judiciary.

*Spoiler Alert – it’s not what Democrats claim

Throughout his confirmation process, you will hear Democrats and liberal activist groups make a variety of claims about Gorsuch. They will say he wants to deny women access to contraception. They will say he wants to impose his religious views on the country. They will say he sides with big business over the little guy. They will say he opposes environmental regulations. What they are not likely to say is that his judicial reasoning is not based in the Constitution.

This gets at the very heart of the disagreement on the role of the judiciary between liberals and conservatives. Many liberals view the Supreme Court as a supreme legislature; there to make the laws they can’t get through the democratically elected Congress.

This is why they equate judicial opinions with personal goals. When a senator votes for or against a bill, it is because they are for or against the bill’s goal. So if the judiciary is just another unelected law making body, the votes in a court case must relate to the judges desires to see certain outcomes.

This is folly and antithetical to democratic government. Conservatives believe the judiciary’s sole purpose is to interpret the Constitution and laws. The only question on a judge’s mind should be “is this legal,” not “does this get a good result.”

Gorsuch only made a brief statement when he was nominated to the Supreme Court on Tuesday night, but in the words of Chris Matthews, I felt a thrill go up my leg. At that time, Judge Gorsuch said “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.” If a judge does his job correctly and applies the law as written, he will inevitably rule against an outcome he desires.

Such an understanding of judicial responsibility is vital to a democracy. Congressmen, senators, and presidents are responsive to the American people because we are periodically given the opportunity to fire them. Federal judges maintain their positions for life, and are therefore not subject to the same pressures and influences as politicians. This is necessary because their jobs are to apply the law as written, regardless of how popular it is to do so.

But when judges decide to make law instead of applying it they become a legislature more powerful than Congress and more enduring than the president. There is a word for governments in which an unelected and unaccountable group of individuals make law, and it is not democracy. We must continually guard against such slippage of our Constitutional order by ensuring the judges we empower understand their proper role. To do so, there is an important step we can take now: confirm Judge Gorsuch.