The Corner

Law & the Courts

On Justice-to-Be Gorsuch’s Supposed “Illegitimacy”

Jamelle Bouie and Ian Millhiser both say that Gorsuch will not be a “legitimate” justice of the Supreme Court. I get why a lot of liberals think the Senate acted unjustly, irresponsibly, and even in contravention of constitutional norms when it declined to hold hearings on the nomination of Judge Merrick Garland to the Supreme Court–even as I disagree with all of that. If I were one of them, I’d probably be pretty angry at Gorsuch’s confirmation too, as I would be if the tables were turned.

But I’d ask the same question about the rhetoric of “illegitimacy” as applied to Gorsuch that I have asked about it when applied to President Trump: What does it mean? Will liberals who believe Gorsuch is illegitimate and the seat “stolen” resolve to treat every 5-4 decision with Justice Gorsuch in the majority as non-binding law? Will they urge fellow liberals on lower courts to disregard those precedents? Tell liberal state officials to disobey them? Advise Justice Ginsburg to turn her back on Gorsuch during all deliberations? Or is this just venting?

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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