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Why Highly Qualified Supreme Court Justice Neil Gorsuch Was a Bad Choice

ME has spent most of his retirement from service to the United States studying, thinking, and writing about the country he served.

Justice Neil Gorsuch

Justice Neil Gorsuch

Qualifications Are Not All That Matter

It isn't enough to have an unquestionably perfect set of credentials and experience to be a justice on the Supreme Court; no, it requires more. In addition, how that justice will interpret the Constitution is very important as well. What is his or her methodology in answering a difficult and ambiguous question? What do they consider when making a decision? What tools of interpretation do they bring to the table? In his book Active Liberty: Interpreting Our Democratic Constitution, Justice Stephen Breyer provides one answer—one this author agrees with.

For example, take the question "When, if ever, is a corporation a legal person?" Long ago, the Court established that a corporation can be treated as a person when the subject is contracts. In 1819, there was a landmark case, Trustees of Dartmouth College v. Woodward, 17 U.S. 518, which interpreted the Contracts Clause (Article 1, Section 10, Clause 1) in the Constitution to mean that when it came to contracts, corporations were artificial persons. The specific words at issue are:

"No State shall enter into any Treaty . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or . . . "

and the case had to do with a state passing a law that effectively turned the private Dartmouth College into a public institution, thereby breaking a contract the state had with Dartmouth.

The point I am trying to make, and that Breyer makes with other cases, is that the Justices were forced to "interpret" what was meant by these Constitutional words; and there was, given the facts of the case, no clear answer provided by the Constitution in this specific instance. And because of this, that opened the door for later Court decisions to give corporations 1st Amendment rights of Speech and Religion.

Without a doubt, Justice Gorsuch and Justice Breyer will use different rules of interpretation to arrive at conclusions. Depending on which methodology is used, opposing answer can result. So the question that Breyer explores in his book is whether it makes sense to use Justice Gorsuch's method or his own.

Text vs. Intent

There are several different words to describe the differing methods of interpretation. One set is "Text or Textual" when the question is about statutes or "Originalist" when the subject is the Constitution itself. Sometimes, "Literalist" is used in place of one or the other. Gorsuch is believed to be a literalist.

On the other hand, you have the way Breyer interprets the Constitution, which, while including textualism, also includes purpose, history, and context. Breyer uses this very simple example to explain the two. When a lost driver asks someone "Where am I?", a textualist would tend to answer "In a car" and leave it at that. A "contextualist" would understand the driver is not asking about his car but rather his location and therefore might answer "In South Los Angeles."

In a different article, I will go into much more detail about the differences, while this article is to present a pretty clear example that highlights those differences.

Justice Stephen Breyer

Justice Stephen Breyer

Active Liberty

The concept of "Active Liberty" is central to the way Justice Breyer interprets the Constitution. He defines it this way:

"The right of the citizenry of the country to participate in government."

And his argument is that the "interpretive process" must be founded in Active Liberty. He expands Active Liberty to mean

"it should be possible to trace without much difficulty a line of authority for the making of governmental decisions back to the people themselves—either directly, or indirectly through those whom the people have chosen, perhaps instructed, to make certain kinds of decisions and in certain ways. And this authority must be broad. The people must have room to decide and leeway to make mistakes."

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Breyer then asserts that:

Active Liberty " . . . falls within an interpretive tradition. That tradition encompasses a particular view of democracy, as including not only the 'rights of the whole people' but also 'the duties of the whole people.' And it calls for judicial restraint, basing that call upon both technical circumstance and democratic value."

Breyer believes it is incumbent on judges and justices to not substitute their will for the will of the people. That each decision must support active liberty and further democratic values.

The Federal Arbitration Act (FAA)

It doesn't sound very sexy, does it? But chances are good you will find yourself in arbitration rather in court where you would rather be. Until 1925, it was easy to bypass unfriendly arbitration situations and go directly to court. Unfortunately, Congress didn't like that idea and passed the Federal Arbitration Act of 1925.

As way of background, the Act applies where

" . . . the transaction contemplated by the parties "involves" interstate commerce and is predicated on an exercise of the Commerce Clause powers granted to Congress in the U.S. Constitution."

In those instances when both parties agree to arbitration, it is mandatory and supersedes state law which may attempt to regulate it. The "gotcha" part of the Act is the arbitration finding is final and may not be appealed to a court.

States have often attempted to get around this Act, but so far, the Supreme Court has held firm in its absoluteness. And that includes the case Justice Breyer uses to illustrate his point on how different styles of interpretation can lead to vastly different outcomes.

The case is dates to 2001a and the salient points are as follows (paraphrased from the book):

  1. The FAA says that all courts, including state courts, must enforce arbitration clauses written into contracts that the Commerce Clause gives Congress the power to control.
  2. The act makes an exception for arbitration clauses contained in "contracts of employment of seamen, railroad employee, or any other class of workers engaged in foreign or interstate commerce."
  3. A retail store and one of its employees enter into an ordinary employment contract which contained an arbitration clause.
  4. The issue is 'does the retail employee fall within the any other class of worker exception'?

aCircuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)

The "Text"-Based Approach

The majority found that retail workers do not fall into the class of "other workers engaged in . . . interstate commerce". They reasoned that the relevant "text" (other workers . . . ) in the exception follow the explicit references to "seamen" and "railroad employees". Their argument was that there is a canon of statutory interpretation1, called ejusdem generis, which says that "general words follow specific words in a statutory enumeration". Here, because "other workers . . . " follows two specific examples, then it must mean that these other classes of workers must be similar to seamen and railroad employees. Clearly, retail workers are not transportation workers.

Additionally, the majority pointed out the words "in . . . commerce" are a "term of art"2, relative to congressional statutes. In this case, the justices in the majority thought that this term was used to indicate Congress intended a "limited exercise of . . . commerce power". And because of this, their narrow interpretation of other class of workers is correct. They took this interpretation in spite of acknowledging that "in commerce" was not a term of art in 1923 when the statute was written. They reasoned that not applying the current meaning to older statutes would "bring instability to the interpretive task".

1. Interpretive canons are one of the grammar tools used by textualists to help them figure out what something says, what the structure is. Literalists also use other tools such as history, tradition, and language in their effort to interpret vague law.

2. A word or phrase having a specific meaning.

Applying the Principles of Active Liberty

Justice Breyer sees literalists as wearing blinders which prevent their ability to see the whole picture, to miss important information that bears directly on the issues. In order properly understand and interpret a statute or the Constitution, Breyer argues that in addition to the literalists tools, others must be added as well. Specifically, these are precedent, constitutional values, factual circumstances, and consequences.

Applying those tools to our problem leads to an opposite conclusion from that of the majority; one Breyer held in dissent.

What he, and the other 4 in the minority, thought important, along with language, structure, and tradition, were the fact surrounding the creation of the law in the first place. They interpreted those to lead to the conclusion that other classes of workers included retail workers. They reasoned this way:

  1. They wondered what the purpose of the law was (the purposive tool), or more specifically why their were exceptions at all.
  2. What did history (history tool) show regarding the term of art "in commerce"? Did the majority use it properly?
  3. Given history and testimoney, what would a mythical "reasonable congressman" have thought the law was supposed to accomplish?

Well as it turns out in commerce did not mean in 1923 what it does today. Testimony probably provides the strongest reason to think that the majority's determination was not what Congress had in mind when they passed the act. Testimony revealed that:

  1. The seaman's union opposed the Arbitration Act because they feared that "arbitration in respect to employment would disfavor ordinary workers
  2. The American Bar Association, the act's chief sponsor, testified that its concern was commercial disputes and not employment disputes
  3. The ABA offered the following language to be added to the bill to overcome labor's objections; "but nothing herein contained shall apply to seamen or any class of workers in interstate and foreign commerce". Breyer thought this a clear abdication of the act's scope covering retail workers.

So, using the "reasonable Congressman" construct, it was clear to the minority that Congress meant to exclude labor disputes from the act's scope and they were intending it to apply only to commerce disputes.

Since the majorities literalists mindset was not to consider the purpose of the act, they ignored the testimony entirely and made an arbitrary decision that "in commerce" was a term of art in 1923.

Now, What Do You Think?

A Stark Comparison Between Interpretive Philosophies

I presented this case from Breyer's book because it presented a stark comparison between the two interpretive philosophies. On on hand, the Justices in the majority considered only the language and the structure of the grammar. On the other hand, the Justices in the minority felt that it was necessary to understand why the exception to the law existed in the first place; given the testimony, it seemed rather germane.

In this case, where would Justice Gorsuch come down? Well, if it is true, and we will find out in due time, then Gorsuch would have sided with the majority. If you agree with the literalist's interpretive philosophy, then you will be happy with his appointment. If you agree that more than just the text should be included in the analysis, then you are going to be sorely disappointed.

This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.

© 2017 Scott Belford

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