Bench Memos

Law & the Courts

Justice Gorsuch’s Past Statements Embracing Originalism and Textualism

Justice Neil Gorsuch in his chambers at the Supreme Court in Washington, D.C., September 13, 2019 (Jonathan Ernst/Reuters)

In my analysis of Justice Neil Gorsuch’s opinion for the Court in Bostock v. Clayton County, I noted his past adherence to originalism and textualism, citing as an example the following passage from Wisconsin Central Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018):

Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost. That is why it’s a “fundamental canon of statutory construction” that words generally should be “interpreted as taking their ordinary, contemporary, common meaning . . . at the time Congress enacted the statute.” Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes in light of new social problems and preferences. Until it exercises that power, the people may rely on the original meaning of the written law. [citation omitted]

That was far from an aberration. Gorsuch’s opinions have professed the same principles in numerous cases, going back to his tenure on the Tenth Circuit. Here are just some examples of passages from past cases. (All citations are to opinions of the court unless otherwise indicated.)

  • “[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’” After all, if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the “single, finely wrought and exhaustively considered, procedure” the Constitution commands. We would risk, too, upsetting reliance interests in the settled meaning of a statute. Of course, statutes may sometimes refer to an external source of law and fairly warn readers that they must abide that external source of law, later amendments and modifications included. But nothing like that exists here. Nor has anyone suggested any other appropriate reason that might allow us to depart from the original meaning of the statute at hand.

—New Prime, Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019) (quoting Wisconsin Central) (citations omitted)

  • [T]he real cure doesn’t lie in turning judges into rubber stamps for politicians, but in redirecting the judge’s interpretive task back to its roots, away from open-ended policy appeals and speculation about legislative intentions and toward the traditional tools of interpretation judges have employed for centuries to elucidate the law’s original public meaning. Today it is even said that we judges are, to one degree or another, “all textualists now.”

—Kisor v. Wilkie, 139 S. Ct. 2400, 2442 (2019) (concurring in the judgment)

  • The Constitution’s meaning is fixed, not some good-for-this-day-only coupon . . . .

—American Legion v. American Humanist Ass’n, 139 S. Ct. 2067, 2102 (2019) (concurring in the judgment)

  • Our job here is a modest one. We are charged with adopting the interpretation most consistent with the treaty’s original meaning.

—Washington State Dep’t of Licensing v. Cougar Den, 139 S. Ct. 1000, 1016 (2019) (concurring in the judgment)

  • If the government’s arguments appear less than convincing, maybe it’s because they’re difficult to reconcile with the Constitution’s original meaning. The Sixth Amendment was understood as preserving the “historical role of the jury at common law.”

—Hester v. United States, 139 S. Ct. 509, 511 (2019) (dissenting from the denial of certiorari) (citation and internal quotation marks omitted)

  • State governments were supposed to serve as “laborator[ies]” of democracy, with “broad power to regulate liquor under §2.” If the people wish to alter this arrangement, that is their sovereign right. But until then, I would enforce the Twenty-first Amendment as they wrote and originally understood it.

—Tennessee Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2484 (2019) (dissenting) (citations omitted)

  • By all appearances, the Constitution as originally adopted and understood did not allow successive state and federal prosecutions for the same offense, yet the government wants this Court to tolerate the practice anyway.

—Gamble v. United States, 139 S. Ct. 1960, 2005 (2019) (dissenting)

  • Bucklew’s argument fails for another independent reason: It is inconsistent with the original and historical understanding of the Eighth Amendment . . . .

—Bucklew v. Precythe, 139 S. Ct. 1112, 1126 (2019)

  • As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause.

—Timbs v. Indiana, 139 S. Ct. 682, 691 (2019) (concurring)

  • This mutated version of the “intelligible principle” remark has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked. Judges and scholars representing a wide and diverse range of views have condemned it as resting on “misunderst[ood] historical foundations.”

—Gundy v. United States, 139 S. Ct. 2116, 2139-40 (2019) (dissenting)

  • The Constitution’s original public meaning supplies the key, for the Constitution cannot secure the people’s liberty any less today than it did the day it was ratified. The relevant constitutional provision, Article III, explains that the federal “judicial Power” is vested in independent judges. As originally understood, the judicial power extended to “suit[s] at the common law, or in equity, or admiralty.”

—Oil States Energy Servs. v. Greene’s Energy Grp., 138 S. Ct. 1365, 1381 (2018) (dissenting)

  • Concerns with substantive due process should not lead us to react by withdrawing an ancient procedural protection compelled by the original meaning of the Constitution.

—Sessions v. Dimaya, 138 S. Ct. 1204, 1233 (2018) (concurring in part and in the judgment)

  • We are not in the business of expounding a common law of torts. Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.

—Cordova v. City of Albuquerque, 816 F.3d 645, 661 (10th Cir. 2016) (concurring in the judgment)

  • The fact is that statutes are products of compromise, the sort of compromise necessary to overcome the hurdles of bicameralism and presentment. And it is our obligation to enforce the terms of that compromise as expressed in the law itself, not to use the law as a sort of springboard to combat all perceived evils lurking in the neighborhood.

—TransAm Trucking v. Admin. Review Bd., 833 F.3d 1206, 1217 (10th Cir. 2016) (dissenting)

  • Our job . . . [is] to apply the [Fourth] Amendment according to its terms and in light of its historical meaning.

—United States v. Carloss, 818 F.3d 988, 1015 (10th Cir. 2016) (dissenting)

  • When interpreting the Fourth Amendment we start by looking to its original public meaning — asking what “traditional protections against unreasonable searches and seizures” were afforded “by the common law at the time of the framing.”

—United States v. Krueger, 809 F.3d 1109, 1123 (10th Cir. 2015) (concurring in the judgment) (citation omitted)

  • Statutes and rules are the product of many competing interests and compromised objectives and the best guide to the “policy” they seek to vindicate is their terms and structure, not our supplemental conjuring. If Congress wants to withdraw district court jurisdiction in this or any other area of course it may, but it is not our business to substitute its judgment for ours based on our own views of optimal policy.

—United States v. Spaulding, 802 F.3d 1110, 1133 (10th Cir. 2015) (dissenting) (citation omitted)

  • Whatever our policy views on the question of protecting reports of prospective violations, it is Congress’s plain directions, not our personal policy preferences, that control.

—Genova v. Banner Health, 734 F.3d 1095, 1099 (10th Cir. 2013)

  • When seeking a statute’s ordinary meaning we must of course take care to study not just the particular isolated clause at issue but also its surrounding context.

—Prost v. Anderson, 636 F.3d 578, 585 (10th Cir. 2011)


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