On Gorsuch appointment and impact on abortion

This installment of Along the Way is a bit different from my usual contribution, as it deals more with law and civics than with theology. However, as abortion has been such an important moral and social issue for the past few decades, I thought it would be helpful to explore the issues sparked by the appointment of Neil Gorsuch to the Supreme Court. They will play a significant role in any changes to the “right to abortion” as defined by Row v. Wade.

Recently the president appointed Neil Gorsuch to the seat on the Supreme Court that was vacated almost a year ago, with the death of Justice Antonin Scalia. As a legal scholar, Neil Gorsuch is well respected. He is a graduate of the best law schools, a student of world class professors, had served as a law clerk for two Supreme Court Justices and has a good reputation among his peers for well-argued decisions. He also has experience as a Federal District Appeals Court judge. Yet, there is a significant likelihood that approval of the appointment may encounter major resistance in the Senate.

His appointment must be reviewed and approved by the US Senate. Currently the Senate rule is that Supreme Court appointments need a 60% majority to be approved. This will require that at least nine Democrats go along with the approval. Two factors may play an important role in how the approval process goes in the Senate.

One factor is the extent to which Democrats are committed to the principle of “turnabout is fair play.” Throughout much of the Obama administration Republican legislators were committed to unrelenting obstructionism. Ironically, one of the clearest examples of this is when President Obama attempted to appoint Merrick Garland to replace Antonin Scalia following his death and the Republican legislators wouldn’t even consider the nomination, even though it was Obama’s right and responsibility to appoint a justice to the Supreme Court. The election of Trump and a shift in the ratio of Democratic to Republican senators have left Democrats in a situation where their only impact on the legislative process may be to obstruct it, as did the Republicans beforehand. So, obstructionism is a possibility.

Another factor is the judicial philosophy of Neil Gorsuch, who is described as an “originalist,” as was Justice Scalia. This understanding of law argues that it is the responsibility of a judge to interpret the law and constitution as it is written and with the same understanding of the meaning of the law that would have been held by any reasonable person at the time of its promulgation. The judge does his best to understand that the law/constitution meant when it was first incorporated into the laws of the nation and then apply that meaning to the case before it. It is not the role of the judge to get creative and try to adapt the meaning of the constitution/law to address current circumstances. That is the responsibility of the legislative branch, not the judicial branch. The judiciary must interpret according to the original intent and if that is inadequate to contemporary needs, then it is the responsibility of the legislative branch to initiate the process to amend the Constitution.

Most commentators set this philosophy against what they refer to as “judicial activism”, which tends to see part of the role of the judiciary as not merely interpreting the constitution as given but using the principles enunciated in it as the basis for identifying rights that flow from these principles but were never considered at the time of the promulgation of the constitution. This approach perceives the Supreme Court as having the ability to make fundamental policy decisions that originalist philosophy would argue are well beyond its legal scope. For example, the right to abortion is the result of interpreting the constitution to provide a right to privacy, with abortion covered under the right to privacy. Yet, the constitution explicitly provides for neither of these “rights”. An originalist reading of the constitution would find Row v. Wade a defective decision rooted in rights that that are not specifically provided for in the Constitution.

This would not be enough to change the Supreme Court’s position on the matter, as Gorsuch would simply take the place of Scalia on the court but if another justice were to retire or die in the next year or two and be replaced by a judge with a similar originalist philosophy the balance would shift in favor of judges holding an originalist philosophy and it could have a significant impact on decisions like Row v. Wade.

I tend to favor an originalist reading of the Constitution. The US government is divided into three branches. The legislative branch develops laws that govern the nation. It is a messy and contentious process that allows important issues to be considered from every angle before a law is put into place.  The executive branch is responsible for implementing the law that is put into place by the legislature. It is not the responsibility of the executive branch to create law, through a pile of executive orders or departmental regulations, but to implement and enforce what the legislature has passed into law. It is the responsibility of the judiciary to judge those accused of violating the law and to interpret the meaning of the law for the executive branch so that they can enforce it. The judiciary should not attempt to usurp the role of the legislature by creating rights and obligations that are not enunciated in the Constitution. When branches of government go beyond their strict constitutional mandate the situation becomes chaotic. If the Constitution needs amended, there is a process by which that can be done and that process should be used.

In any case, the appointment of Neil Gorsuch to the Supreme Court is an important development and could have significant consequences. It will be interesting to follow how the appointment will develop over the next few months.

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