Gorsuch hearings: A referendum on Originalism and corporate power

The nomination hearings for Judge Neil Gorsuch this week demonstrate yet again that in politics, there’s a price for everything. Republicans played hardball with Merrick Garland’s nomination in 2016 and were rewarded handsomely for it with a clean sweep in November.  Plenty in the Democratic base think that their Senators should do the same here.

But filibustering and forcing Republicans to take the nuclear option — reducing Supreme Court nomination votes from a supermajority of 60 to a simple majority of 51 — will have long term implications, not least because it’s possible that another Supreme Court seat will open up during Donald Trump’s presidency.  

{mosads}Anthony Kennedy is 80, Ruth Bader Ginsberg is 83, and Stephen Breyer is 78.  A Trump nominee taking any of these justices’ seats will actually move the balance of the court in a conservative direction, whereas Gorsuch will maintain the current balance, replacing the conservative Antonin Scalia.

And these hearings reveal why this balance matters.  At the heart of constitutional law today is the question as to whether the Constitution should be interpreted in its strictest sense, in light of the meaning of its words at the time it was written (Originalism), or whether it set out broader principles that would endure to guide decisions made centuries later about questions the founders could not envisage (a “living” Constitution).  

Gorsuch is an Originalist, like Scalia was, and this principle has only really been incorporated into legal thinking since the mid-1980s (in contrast, the first Supreme Court case was in 1793). This is what Chuck Schumer means when he talks about Judge Gorsuch being outside the “mainstream.”  The idea that judges should divine what our Founders meant in shaping U.S. law in the 21st Century has been called “arrogance cloaked in humility” — not least because it results in outcomes that conservatives prefer.  

There are also questions being asked this week that strike the heart of every day America — in particular, the rising power of corporations under the Roberts court.

The current court has broadened the First Amendment rights of for-profit companies meaning that employees’ access to healthcare can be limited (Hobby Lobby) and average citizens’ political contributions are overshadowed by corporate money (Citizens United).  Decidedly pro-business, this Court has also narrowed regular people’s access to courts by upholding hidden arbitration clauses, like those that appear in cell phone and credit card contracts.  

The Founders would likely shudder at the power of corporations in today’s America. Not least because they wield considerable economic power (which is inevitably tied to political power), but because they are not constrained by government’s duties to the people or many of the constitutional constraints that ensure our freedom.  

Senate Democrats face a political lose-lose this week. But regular Americans might be the biggest losers if corporations’ rights continue to be expanded by the Roberts court.

Danielle McLaughlin is an attorney, political and legal commentator, and co-author of The Federalist Society: How Conservatives Took the Law Back from Liberals, which explores the rise of conservative legal theory in U.S. law.  Follow her on Twitter @MsDMcLaughlin.

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