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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."

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


Scott Belford (author) from Keystone Heights, FL on May 04, 2018:

William - Thanks for reading and commenting. But, I must disagree with your assessment.

Let me offer a couple of definitions from a course on the subject:

- Originalist: An originalist is a person who believes that the meaning of the constitution does not change or evolve over time, but rather that the meaning of the text is both fixed and knowable. An originalist believes that the fixed meaning of the text should be the sole guide for a judge when applying or interpreting a constitutional provision.

Textualist: A textualist is an originalist who gives primary weight to the text and structure of the Constitution. The text means what it would have been understood to mean by an ordinary person at the time it was written. Textualists often are skeptical of the ability of judges to determine collective "intent." Justice Antonin Scalia is a textualist.

Let me start with your second paragraph first.

1) In terms of examples, I fail to see the distinction between oral or written, it is simply a hypothetical.

2) I would suggest the "context" is a) it is a driver and b) the driver is lost. That is what the "someone" observes when they are asked the question "Where am I?"

3) I textualist looks to the text and the structure while giving minor weight to other aspects of the statement. Clearly, the correct answer must be "in a car" because that satisfactorily answers the question (structure) as written (text).

4) As Bryer notes a "contextualist" would observe that a) the driver appears lost and b) the answer "in a car" is nonsensical and would probably answer instead "on route 100 headed toward Denver" or some such response.

I would argue that the Constitution often has no "clear meaning of a text and its historical context.", for example:

- "general Welfare"

- "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

The only guides to "original meaning" of such things is the writings and speeches by the signers of the Constitution before and after its creation. The only document that came from the Convention itself is the Constitution itself and James Madison's notes that weren't released until one year after he died in 1836. So to say that the Constitution as "clear meaning" is a huge stretch.

Further, most of the contemporary writings and speeches from those who created the Constitution don't support a strict interpretation paradigm. They never expected or wanted the Constitution to be anything but a living document that changed with the times.

In addition, when you read the history, you will find that the arguments used by today's conservatives are very similar to those who opposed the Constitution in the first place.

William R Bowen Jr from New Bern, NC on May 03, 2018:

I will just focus on your first comments to clarify a texualist or an originalist position. First, the Scalia view (that's what I'll call it--texualist or originalist) isn't that there is never ambiguity in the language of the Constitution or in congressional statutes. But, rather that you would not deny the clear meaning of a text and its historical context. An example that Scalia used often was that when it comes to the Eighth Amendment prohibition on cruel and unusual punishment, that Amendment was written in a world that had the death penalty. So, it would be wrong to say that the death penalty constituted "cruel and unusual punishment" today since it wasn't that when the Amendment was written. So, the Scalia approach is to consider "purpose, history, and context" just as Breyer does. In fact, I would say that the Breyer approach (which is like the Brandeis approach) is to sometimes ignore historical context and purpose and offer a more sociological interpretation and less of a contexual one.

Second, I think that Breyer's example of the car and answering "Where am I"? is a problem. First, he should use a written example, not an oral one. That's an oral discussion and context would fill in the blanks as to what was meant. Too often when you're only reading about an event, the context is diminished. But more to the point, I think that it's wrong to say that the texualist view (the Scalia view) doesn't consider the context in which a law is passed. I heard Scalia talk about "congressional intent" enough through the years to convince me that he thought it important.

Scott Belford (author) from Keystone Heights, FL on April 15, 2017:

Thank you Larry and MizBejabbers. I can't complain about Brad's hub-length since I have been guilty of it myself on, sorry to say, more than one occasion.

Doris James MizBejabbers from Beautiful South on April 15, 2017:

Being a legal editor, I found your hub very interesting, and I also found Brad's hub-length text-based comment interesting. When we edit the laws we publish, we are very careful to consider the politician's intent before we suggest any changes. So I guess you would call this the contextual approach. In our approach, the use of the "nothing herein shall apply..." would indicate intent.

Another trick of the trade would be the use of the "including, but not limited to," or "including without limitation" clause, which of course, would not be appropriate in this case. It has become so "thrown in" laws today, that judges are finding it meaningless.

Regarding the use of "person" pertaining to corporations and other types of group commerce, this is so common that today, we are having to substitute "individual" when referring to a human being.

Politically speaking, I believe that Gorsuch will toe the conservative line and remained mum during his interview. Congress had every right to know his personal feelings, at least that is what the legal eagles are telling me.

Larry Rankin from Oklahoma on April 15, 2017:

I always find your analysis interesting.

Scott Belford (author) from Keystone Heights, FL on April 14, 2017:

Thank you Mike and Ralph. At least the Majority found that transportation related labor contracts do qualify for the exception.

Scott Belford (author) from Keystone Heights, FL on April 14, 2017:

Actually Brad, the founders did not make that all clear. What they did make clear can be gleaned from a Madison comment (at the Constitutional Convention, I think) that "In framing a system which we wish to last for ages, we should not lose sight of the changes which ages will produce." In others, the government and Constitution must be flexible enough to accommodate. change.

You do understand how the Constitution is amended don't you? I ask because of this statement "But starting with the 16th amendment, the SCOTUS allowed the misuse of apportionment to become the basis for the US Federal Income Tax. "

SCOTUS didn't allow anything, instead, it followed the amendment, which reads:

"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration." - where do you get the idea that 1) the Supreme Court "allowed" the 16th Amendment to levy an income tax and 2) the 16th Amendment does allow a direct tax?

Because the States refused live by the spirit of Bill of Rights with their own citizens, one of the purposes of the 14th Amendment to make the states abide by the Bill of Rights, just like it bound the federal government. For the next 50 years SCOTUS dismantled the legislation that implemented both the 14th and 15th Amendments. It was only in the mid-1930s did the Courts begin to repair all the damage done by conservatives on the Court.

No, "The major flaw of SCOTUS was made by the founders, " is not correct. They did that purposefully, like they did with most things in the Constitution. They intended the Constitution to be reinterpreted as time passes on. They did not want Justices trying to apply 1787 norms, technology, language, etc to the following centuries.

What? You don't think Thomas, Alito, and now Gorsuch won't toe the conservative line? Why do you think McConnell completely abused the Constitution by not even considering Garland.

BTW, Republicans started out as liberal progressives and then got hijacked by conservatives.

Mike Russo from Placentia California on April 14, 2017:

My Esoteric: It's interesting that you brought up the case about interstate commerce and the railway labor act. My son is a 747 captain for Atlas Air Cargo. The pilots are protesting because of substandard working condition and pay compared to major carriers like UPS and Fedex. However, they are stopped by management at every attempt at negotiations because of the Railway Labor Act. It would be interesting to see how Gorsuch would judge this. Here is a piece from Teamsters Union. Let me know what you think.


Ralph Deeds from Birmingham, Michigan on April 14, 2017:

Interesting Hub.

Brad on April 14, 2017:

Your hub did nothing to backup the title of the hub. Because you fed off of the public and still do, you see none hundred years.

The SCOTUS has favored the expansion of the federal government even though the founders made it clear that the central government was there in a limited use. That use was to serve as the focal point of the US to the rest of the world. It was also there to take care of the conflicts of laws between the states.

The ICC was there to protect the people from being unduly taxed as commerce went through different states. Apportionment was the factor to be used to determine how much a state could tax commerce. This is especially true when the commerce is simply going through a state to a final destination.

But starting with the 16th amendment, the SCOTUS allowed the misuse of apportionment to become the basis for the US Federal Income Tax. This was not an amendment that gave the Federal Government the power to tax, as that was already given to them in the constitution, Article I Section 8.

But what it did do was to remove the apportionment factor, thereby taking the power of the states and giving it to the federal government.

This was the first step of many to make any tax issue a federal issue. For example, it was determined that simply having a phone in your business or residence was all that was needed to make it a matter of federal jurisdiction, as the phone was part of the Interstate Commerce. Thus, the ICC ruled over state issues, and took away any power of the states under the 10th amendment.

Another case, in the 1940s, where a farmer had taken 10 acres of his land to be used as his personal farm to feed his family. The SCOTUS decided that this also was under the jurisdiction of the federal government, and the Interstate Commerce Clause.

Their reason was that because the farmer didn't buy out of state produce for his family, this impacted the sales of produce coming from other states. This negligible impact on Interstate Commerce was proof that the SCOTUS wanted the central government to expand.

With the apportionment impediment nullified by the 16th amendment, and the SCOTUS misinterpreting the ICC the federal government then had the funding to support an expanding central government.

Since the passage of the Federal Income Tax, the SCOTUS has rejected and in many cases summarily rejected any attack on the TAX, including many that involved constitutional grounds.

In this century, the SCOTUS has made more political decisions resulting in some bad decisions. For example, their use of the 14th amendment for deciding in favor of basically social issues exceeded the actual historical use of that amendment.

Consider that the 14th Amendment didn't give black men the right to vote, that was given by the 15th amendment. If the 14th Am had the power to give people the right to vote then why was it necessary to have the 15th Am to give black men the right to vote.

The 14th nor the 15 th Amendments didn't give women the right to vote. That right was finally given in 1920 more than fifty years after the 14th and 15 Am.

If the SCOTUS was wrong then about the 14th Am, then how do we know they are right about the current major flop and expansion of the 14th Am today?

The SCOTUS and the 14th Am in this century has been to act like the old saying, when you are a hammer, then everything looks like a Nail.

The major flaw of SCOTUS was made by the founders, as they left the creation and details of the SCOTUS and their lower federal courts up to the US Congress to flesh out. Now, when has congress ever done anything right?

I have not found more than a dozen SCOTUS decisions that we couldn't have done better without them. Even today, the Roe v Wade decision is still being debated. And it has been debate during most of the presidential elections. But, the 2016 was the most violent and sparked by the SCOTUS decisions that leaned more to PC and political left than to sound constitutional based decisions.

Also, the SCOTUS made a political rather than constitutional decision on Obamacare. Allowing the mandated healthcare and basing their decision that it was constitutional because it was a tax.

The SCOTUS decisions do not reinforce the right to privacy given to us under the 4th Am. While there was no declared war, the SCOTUS didn't stop the passage of the Patriot Act. The Federal Income Tax has multitudes of attacks as being unconstitutional. Even though by definition an amendment is constitutional, the implementation of that amendment can be decided to be unconstitutional.

The Federal Income Tax is just a means of getting revenue to the Federal Government, but there are other means like a National Sales Tax similar to those already in existence in most states. A National Sales Tax doesn't need to violate your privacy just to give revenue. It also doesn't need for you to give up your 5th Am right not to be a witness against yourself. It also doesn't need to have a Tax Court that is not replete with constitutional protections, such as equal protection, and due process among the many. It doesn't need a huge Internal Revenue Service to collect the tax.

It also doesn't need thousands of exceptions, deductions, deferments, tax classes, audits, and other rules and regulations found in the Internal Revenue Code. This code nullifies the imagined higher tax rates on the rich. And even those marginal tax rates are unconstitutional under the equal protection clause.

SCOTUS has upheld any and all attacks against the unconstitutionality of the Federal Income Tax to allow the central government to expand without any resistance. It is ironic that it misuses Apportionment to get its power.

Federal Income Tax is the reason that there is such a major division of wealth in the country. And the IRC is the main mechanism for the wealthy to not only retain their wealth, but in the cases of Warren Buffett and Bill Gates to even double their wealth even during an economic meltdown.

Also allowing Obamacare, showed that SCOTUS didn't understand the other two mandated taxes under FICA. These taxes are today called Entitlements, but they are also a ponzi type of federal system that has run the course because there isn't enough new people to sustain the scheme.

At the same time, federal employees are given the best unfunded Retirement System, and they are not called Entitlements, they are called Defined Benefit Retirement, and that means those benefits are guaranteed. And unlike SS there a set for a finite period of contribution, and benefits are set, but they also can increase from inflation. Unlike SS, the FERS is not managed by the government, as they are privately managed. The age and conditions of FERS retirement doesn't change by the will of congress. Also, unlike SS, FERS ends the contributions when the retirement benefits begin. SS is applied to anyone that works without regard to whether they are getting SS benefits. And during the time between early SS and regular SS ages for retirement, the government can reduce the SS benefits depending on whether the retiree is still working for wages.

SS and Medicare shouldn't be at the will of congress, it should be a contractual obligation of congress to pay out the benefits, while they take in the contributions.

And you didn't have any real reasons other than the implied anti republican view for rejection Neil as a SC justice. And justices like Ruth Ginsberg with her transparent favoring of the left should retire as she is no longer a jurist, but simply a democrat supporter.

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