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How Will Trump’s Supreme Court Remake America?

A former colleague says that Gorsuch urged his clerks to make money in the private sector before they went on the bench, the path he took himself as a corporate lawyer. In the 2000s, Gorsuch represented Philip Anschutz, the oil-and-gas mogul, who has invested in a vast array of businesses and conservative publications, including The Washington Examiner. Anschutz played a role in elevating Gorsuch’s legal career. In 2006, after George W. Bush was re-elected president, Anschutz lobbied for Gorsuch’s appointment to the U.S. Court of Appeals for the 10th Circuit. He then gave Gorsuch a speaking spot at an annual dove-hunting retreat he ran for prominent conservatives.

At the Nixon library, Gorsuch advertised his support for diversity. Singling out three of his law clerks, Gorsuch described them as a descendant of Mexican immigrants and Holocaust survivors, a first-generation Chinese-American and the first Native American to ever clerk on the Supreme Court. He praised his appeals court, the 10th Circuit, for being “as diverse a court on any metric you wish to consider as any court in the country.” In fact, judges on the 10th Circuit are overwhelmingly white and male. Gorsuch went on to ask his audience if they had heard people say originalism “leads to conservative results.” The crowd murmured, and Gorsuch jutted his chin. “Rubbish,” he said.

In his book, Gorsuch asks rhetorically if there’s any reason to “only sometimes adhere” to the original meaning of the Constitution, and he answers: “For my part, I can think of none.” This is a significant shift. In contrast to Scalia’s confession of fainthearted originalism (which Scalia himself repudiated in 2013), Gorsuch professes to be absolutist on the matter. He argues that to make an exception would be to fall into a trap: “The more leeway a judge is given, the more likely the judge will engage, consciously or not, in motivated reasoning or bias in reaching a result.”

The challenge, then, is to stick with the theory, even if it leads to a result you don’t like. But rather than facing up to archaic and politically inconvenient results that originalism can dictate, Gorsuch tends to wave them away. In his book, he addresses the charge that an originalist reading of the Constitution could prevent a woman from becoming president. Article II of the Constitution, after all, calls the chief executive “he.” But Gorsuch says it’s “nonsense” to think the plain meaning of the text restricts the presidency to men, because “‘he’ served as a standard pronoun of indefinite gender” when the Constitution was written and ratified.

Some scholars are skeptical of Gorsuch’s reading of Article II. In the revolutionary era and after, the plain meaning of “he,” in context, was understood to refer only to men. At the time, the use of “he” would have given states, if they wanted it, a basis for blocking women from appearing on the presidential ballot, Akhil Amar, a professor at Yale Law School, told me. “The framers’ Constitution allowed states to bar women (and many men) from voting and holding office — and originalism ties its meaning now to that world,” Reva Siegel, also a Yale law professor, says.

Last June, Gorsuch issued his most significant originalist opinion to date, in Gundy v. United States, a case dealing with Congress’s power to broadly delegate policymaking authority to federal agencies. In a dissent, Gorsuch picked up on a solo concurrence Thomas wrote in 2015 and argued that the interpretation of the Constitution that has allowed Congress to do this — in regulating everything from air and water quality to banking and food safety — is “at war with its text and history.”

Gorsuch said the problem mostly came from a line of cases in the 1940s, following the New Deal expansion of government. He presented his view, which is known as the “nondelegation doctrine,” as the proper original understanding of the constitutional separation of powers between the legislative and executive branches.

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