Cross-posted from Politico.
On Tuesday, Donald Trump nominated conservative federal appeals court judge Neil Gorsuch to the Supreme Court. After 11 days packed full of executive actions—on everything from immigration to military spending to trade—it’s this decision that could end up being one of the president’s most consequential, shaping the country’s legal system for decades to come. So, just how will Gorsuch, if confirmed, fit into the current court—and what does his nomination tell us about our new president? Politico Magazine asked top legal scholars to weigh in. Here’s what they had to say.
An originalist when we need one?
Michael Waldman, president of the Brennan Center for Justice at NYU School of Law, is the author of The Fight to Vote and The Second Amendment: A Biography.
Supporters hail Judge Neil Gorsuch as an originalist in the mold of Justice Antonin Scalia. But that brand—slapped on the judge as though he were a licensed Trump hotel—doesn’t tell us as much as we might think. Consider Scalia’s most famous opinion. The late justice called D.C. v. Heller the “vindication of originalism,” but many—including other judges—derided its tendentious use of history. At times, originalism was just conservative political ideology dressed up in a powdered wig.
A truly principled originalism might not always give Trump the supine Supreme Court he no doubt craves. Scalia’s approach often yielded a strong reading of the Fourth Amendment, which curbed abusive policing and executive authority. The Founders took the “emoluments clause” and its goal of preventing corruption very seriously. And they were gravely worried about the dangers of an elected demagogue. They knew that demagogues had destroyed ancient republics (like Rome) and had recently governed tyrannically in Great Britain (Oliver Cromwell). At the Constitutional Convention, James Madison worried voters might some day “become the tools of opulence and ambition.” That fear animated many of the Constitution’s key checks and balances. On that topic, let’s hope the next justice—whether Neil Gorsuch or anyone else—listens to Madison in this time of testing for our Constitution.
For more opinions, see the full article.