This, from the ACLU, just landed in my inbox, and it’s pretty much what you’d expect:
NEW YORK — American Civil Liberties Union Executive Director Anthony D. Romero issued the following statement in response to President Trump’s nomination of Neil Gorsuch to the Supreme Court:
“Americans need an independent Supreme Court justice who will defend our hard-won civil rights and civil liberties and stand up to overreaching executive actions. The Supreme Court has a special obligation under our Constitution to protect the rights of all people to equal treatment, of women to control their reproductive choices, and of everyone to privacy and free expression.
“Judge Gorsuch’s record, including his decision in the Hobby Lobby case, raises questions about whether he would allow businesses and individuals to opt out of nondiscrimination laws based on religious objections. And his commitment to an ‘originalist’ theory of constitutional interpretation that disregards our nation’s evolving understandings of constitutional rights is also of concern. We look forward to a fair and full public discussion of his record. After unnecessarily holding open a vacancy on the Supreme Court for nearly a year under President Obama, any effort now by Senate Republicans to rush this process should be resisted.”
Sure, there’s a nod to the old-school ACLU in there, noting the Supreme Court’s obligation to protect the right of free expression (but it’s not a “special obligation” — every branch of the government has an equal obligation to protect rights guaranteed by the Constitution) and the importance of standing up to “overreaching executive actions.” The bulk of the statement, however, illustrates not only what’s wrong with the new-school ACLU but also with what passes for progressive jurisprudence in the modern era.
Note well the critical place of abortion, along with the deceptive phrasing (“reproductive choices” — what, are they worried Gorsuch will ban midwives?) Abortion rights will be central to Democratic opposition to Gorsuch, and the fight over abortion is also a useful stand-in for progressive judicial philosophy — create the right you want, then go spelunking for it in the hidden, dark places of the Constitution. Or, put another way, decide on the outcome you want, reason backwards to get there, and call it “constitutional law.”
While not dealing with constitutional law, the ACLU’s decision to single out Hobby Lobby is instructive. In the HHS contraception cases, Judge Gorsuch was tasked with applying a specific legal test as mandated by the Religious Freedom Restoration Act. He was not asked to decide if he prefers free contraception to religious liberty. But the words of the statute matter far less than who wins and who loses, so Hobby Lobby is now a liberal symbol of judicial oppression.
Then there’s the ACLU’s concern that Gorsuch’s ”originalism” conflicts with the nation’s “evolving understandings of constitutional rights.” The ACLU’s constitution isn’t just alive, it actually evolves. In law school I heard this point of view justified by the argument that the Constitution should be viewed mainly as “pointing us towards justice,” and its general principles that are malleable within various historical contexts. Yet the Founders implemented a mechanism for accommodating “evolving understandings,” and that mechanism is the constitutional amendment. But constitutional amendments are hard. Appointing liberal justices is easier. Social justice likes the easier path.
At any rate, get ready for a host of criticism like the ACLU’s — most of it premised on the fundamentally-flawed notion that the role of the judge is to make sure the good guys win, and the bad guys lose. Gorsuch will reach decisions liberals will like, and he’ll make decisions they hate, but unless we’re misjudging him badly, he’ll make those determinations on the basis of the legal texts at issue, not the ephemeral and ever-changing demands of social justice.