Mark B. Baer, Esq.

Empathy and Relationships

Should Supreme Court Justices Believe in Democracy?

Neil Gorsuch's comments indicate that he is extremely biased and anti-democracy.

Posted Feb 03, 2017

On January 31, 2017, Trump nominated Neil Gorsuch to fill the vacancy on the supreme court left by the death of Antonin Scalia.

Since his nomination, much has been written about Judge Gorsuch's views on the role of judges and courts in our democracy.  

"Gorsuch wrote an essay in 2005 for National Review in which he said:

'American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.'

He continued: 'This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.'"

He was consistent with those views on Jan. 31, 2017, when he said, “I respect, too, the fact that in our legal order, it is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter, the work of the people’s representatives."

Is such a view appropriate for a judge within the context of a constitutional democracy?

"The essence of democracy is majority rule, the making of binding decisions by a vote of more than one-half of all persons who participate in an election. However, constitutional democracy in our time requires majority rule with minority rights. Thomas Jefferson, third President of the United States, expressed this concept of democracy in 1801 in his First Inaugural Address. He said,

All . . . will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect and to violate would be oppression.

In every genuine democracy today, majority rule is both endorsed and limited by the supreme law of the constitution, which protects the rights of individuals. Tyranny by minority over the majority is barred, but so is tyranny of the majority against minorities. 

This fundamental principle of constitutional democracy, majority rule coupled with the protection of minority rights, is embedded in the constitutions of all genuine democracies today....

Both majority rule and minority rights must be safeguarded to sustain justice in a constitutional democracy." 

As set forth on uscourts.gov, the role of the Supreme Court is as follows:

"The Supreme Court plays a very important role in our constitutional system of government. First, as the highest court in the land, it is the court of last resort for those looking for justice. Second, due to its power of judicial review, it plays an essential role in ensuring that each branch of government recognizes the limits of its own power. Third, it protects civil rights and liberties by striking down laws that violate the Constitution. Finally, it sets appropriate limits on democratic government by ensuring that popular majorities cannot pass laws that harm and/or take undue advantage of unpopular minorities. In essence, it serves to ensure that the changing views of a majority do not undermine the fundamental values common to all Americans, i.e., freedom of speech, freedom of religion, and due process of law."

The above-referenced role is consistent with what is required in democracy. However, Gorsuch's view is completely inconsistent.

Minorities, by definition, are minorities when it comes to electing "leaders and the ballot box." As such, Gorsuch is clearly stating that he believes tyranny of the majority against minorities is completely acceptable and that the courts should not be used to set "appropriate limits on democratic government by ensuring that popular majorities cannot pass laws that harm and/or take undue advantage of unpopular minorities."

While Gorsuch is certainly entitled to his beliefs, I'm afraid they are inconsistent with what's required by judges and courts within the context of a democracy.  This is extremely troublesome, considering that he has been nominated to replace Scalia on the Supreme Court.

"Back in high school, Neil Gorsuch — now Donald Trump's nominee for the Supreme Court — reportedly founded a group called the Fascism Forever Club. Gorsuch reportedly founded the group, apparently named with tongue firmly in cheek, as a freshman and led it through his senior year."

According to Dr. Lawrence Britt, the early warning signs of fascism are as follows:

1. Powerful and ubiquitous nationalism

2. Disdain for human rights

3. Stereotyping of enemies and punishment of critics and scapegoats

4. Supremacy of the military

5. Rampant racism and sexism

6. Control of mass media and intentional dishonesty

7. Obsession with national security 

8. Intertwining religion and government 

9. Protection of corporate power 

10. Suppression of labor power 

11. Disdain for liberals and the arts

12. Obsession with crime and punishment 

13. Rampant cronyism and corruption 

14. Fraudulent elections and disregard for democracy 

15. Glorification of war and conflict

Gorsuch's views just with regard to the role of judges and courts in our democracy show that he has a "disdain for human rights", a "disdain for liberals", and a "disregard for democracy."

With a little research, one can discover Gorsuch's beliefs with regard to the "protection of corporate power."

"While in private practice, Gorsuch co-authored a column in Legal Times criticizing 'the free ride to fast riches enjoyed by securities class action attorneys.'

Gorsuch added, 'The problem is that securities fraud litigation imposes an enormous toll on the economy, affecting virtually every public corporation in America at one time or another and costing businesses billions of dollars in settlements every year.'” 

Rather than making this article longer than necessary and because it is likely impossible to find information online to determine his perspective with regard to all early warning signs of fascism, I will quote Maya Angelou as follows:

When someone shows you who they are believe them; the first time.”

Unfortunately, the serious concerns with Gorsuch's suitability as a Supreme Court Justice don't end there.

On February 2, 2010, Gorsuch wrote the following in the case Laborers' International Union of North America v. NLRB:

In this respect, our job is something like the role of the instant-replay booth in football: the call on the field presumptively stands and we may overturn it only if we can fairly say that no reasonable mind could, looking at the facts again, stand by that call. So it is that we, like the instant-replay official, often affirm decisions that we might not have made ourselves.”

While that comment may not seem problematic to many, for those of us who understand how bias works, it's extremely disconcerting. 

The following excerpt from In Defense of Judicial Empathy by Thomas B. Colby explains the issue:

"A judge who believes in the popular portrait of judges as umpires, and who rejects as illegitimate calls for judicial empathy, will ‘call ‘em like he sees ’em’—applying the law as he understands it to the facts as he perceives them. What he will fail to realize is that he is seeing the case from a particular perspective—his own—and is mistaking that perspective for an unbiased, neutral one. What he views as the disinterested, ‘correct’ answer will in fact in many close cases just be the contingent answer that he arrives at after unintentionally privileging his own perspective—subconsciously empathizing with those whose experiences he shares, whose perspective comes naturally to him, and whose plight strikes a chord with him. Without meaning to, he will give disproportionate weight to their interests in his legal calculus and undervalue the interests of those whose perspectives he does not fully appreciate. All the while, he will claim, and genuinely believe, that he is being completely neutral—an umpire, just calling balls and strikes. But in fact, he will tend disproportionately to decide cases in favor of the parties with whom he most naturally empathizes—usually large corporations, the government, employers, and the like, given the background of most federal judges (especially most conservative federal judges, who are the most likely to endorse umpiring over empathy). This distorts the law. It is bad judging under a false (and falsely superior) sense of neutrality and professional excellence."

Gorsuch is apparently aware of his biases and rather than working to reduce them, he "legitimizes" them by embracing "originalism" when it comes to interpreting the Constitution.

Scalia famously described "originalism as follows:

"The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted."

For frame of reference, the Constitution was signed on September 17, 1787. That was only eleven years after the Declaration of Independence was executed.  Now, remember that the second paragraph of the United States Declaration of Independence states, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness."

At that time, "men" most certainly didn't include African Americans, since slavery existed at the time.  It also didn't include women.  "Originalists" would argue that subsequent Amendments to the Constitution take precedence to the extent that they alter such things and that those Amendments must be interpreted based upon their meaning at the time they were adopted.

It's now February 3, 2017, over 230 years after the United States Constitution was signed. I would like to believe that we have learned a great deal in all those years. Many of the beliefs held by our Founding Fathers have since been found to have been incorrect. However, "originalists" contend that we should continue applying those incorrect beliefs to current issues because those were the incorrect beliefs of our Founding Fathers at the time the Constitution was signed. 

"Originalism" rationalizes discriminatory and biased beliefs against others as though they aren't biased or discriminatory. 

Since Trump was sworn in as President of the United States, the Economist Intelligence Unit downgraded the United States from a full democracy to a flawed democracy, which "puts the U.S. in the same category as Poland, Mongolia, and Italy."

For those who believe that the information in this article doesn't apply to the United States of America because it's a democratic republic rather than a "pure democracy", think again.

"The key difference between a democracy and a republic is that a republic protects the minority. In a democracy the rule of the majority party is complete and has no appeal process. In a republic the majority is limited by a constitution.

The Bill of Rights, the first ten amendments to the Constitution of the United States, serves as an example of how a constitution can limit majority power in a republic. The first amendment, which guarantees the freedom of speech to all citizens, cannot be overturned by a majority elected to the national government. The only way that the rights granted by the first ten amendments can be taken away is by amending the Constitution.

The danger inherent in a democracy is that turbulence in the ruling party can grant new rights to people or remove rights that people view as fundamental. This state of uncertainty causes the pure democracy to be an unstable form of government. By declaring specific freedoms as rights that cannot be taken away by a simple change in majority, more stability is created. The average person is able to rest easy knowing that no matter which political party is in power the basic rights of the people remain unchanged."

Considering that our constitutional democracy was specifically designed to restrain the majority from imposing its will on the minority and that judges "should perform the duties of the office fairly, impartially and diligently", is it wise to confirm Trump's nomination of Neil Gorsuch as a Supreme Court Justice?

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