The United States said goodbye to one of the titans of American jurisprudence, Supreme Court Justice Antonin Scalia, around one year ago. Justice Scalia left an indelible mark on our courts and the entire legal profession. Of course, Scalia’s direct influence was significant, as he was one of the most vocal members of the nation’s highest court. His legacy, however, goes far beyond the Court’s decisions, or his own concurrences or dissents.
For decades, Justice Scalia provided the philosophical underpinnings for America’s judges. He did not strain to achieve his desired outcomes in particular cases. Rather, he set out his philosophy of judging, and then applied that philosophy to the cases that came before him. He called this philosophy “textualism,” and it’s easy to understand why. Justice Scalia focused on the plain text of the statute in front of him. Where the text’s meaning is clear, there is no room for “interpretation” – a law means what it says.
This simple, straightforward philosophy recognizes that each branch of government plays a separate role, and that a judge’s duty is to apply the law, not to write it. Scalia wrote that a constitutional provision or a law “should be construed reasonably, to contain all that it fairly means.” But he emphasized that judges have “no authority” to pursue “broader social purposes” or use their decisions to effectively write new laws.
Justice Scalia was not shy about discussing this philosophy. Over the years, he gave speeches and authored books designed to explain his methods to students and practicing attorneys. These speeches and writings help shape a new generation of lawyers and judges, and provided students an alternative to the liberal orthodoxy taught in many law schools. Scalia also sparked a robust debate about the proper role of judges, with other judges weighing in to defend or rebut his methodology. (As an adjunct law professor who taught a course on statutory interpretation, I supplemented the students’ textbook with Scalia’s book, A Matter Of Interpretation, which set out his methodology in short, easy-to-understand prose.)
Judge Neil Gorsuch is a worthy nominee to replace Justice Scalia. His resume is impressive: a degree from Harvard Law School, clerkships with two Supreme Court Justices, and successful private and public sector careers before becoming a federal judge. Equally important, though, is Gorsuch’s commitment to the judicial philosophy that Scalia spent decades espousing. Gorsuch recognizes the importance of the separation of powers and he understands the limited role that each branch of government plays.
Like Justice Scalia, Judge Gorsuch has spent a career reminding us of the differences between judges and legislators. Gorsuch has observed that legislators should rely on “their own moral convictions” to “reshape the law” as they think it should be. A judge’s job, by contrast, is to state was the law is, but not what it should be. Thus, Gorsuch has argued that judges should strive “to apply the law as it is,” looking to the statutory text “to decide what a reasonable reader … would have understood the law to be.”
Judge Gorsuch recognizes that judges should not decide cases based on their preferred policy outcomes. In this regard, he has quoted Justice Scalia himself about the proper methods of judging: “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
Judge Gorsuch has the right judicial philosophy. He respects the separation of powers. He understands the proper role of judges as interpreters of law, but not makers of it. He correctly grasps that the latter function is properly left to Congress.
Neil Gorsuch is the right choice for the Supreme Court. He will fill the void – to the extent that anyone ever could – that was left by Justice Scalia’s passing. The United States Senate should move to approve Gorsuch’s nomination as soon as possible.
Larry Obhof is President of the Ohio Senate and a practicing attorney.
