Neil Gorsuch

3 Questions for Supreme Court Nominee Neil Gorsuch

He should explain his views on federalism, executive power, and unenumerated rights.


The Senate Judiciary Committee is holding hearings this week on the nomination of Judge Neil Gorsuch to the U.S. Supreme Court.

Gorsuch is a federal judge with admirers across the political spectrum. But his views on several crucial constitutional issues remain unclear. Here are three questions I'd like to hear Judge Gorsuch address this week before the Senate Judiciary Committee.

1. Congressional Power

The Supreme Court has upheld the power of the federal government to prosecute cannabis users in California under Congress's authority to regulate interstate commerce. Yet the medical marijuana that was the focus of that 2005 ruling was both grown and consumed only in California.

I'd like to hear Judge Gorsuch explain his views on the limits of federal power. Does Congress have the authority to ban a local activity that's legal under state law?

2. Executive Power

The federal courts are currently hearing arguments about the constit utionality of President Trump's ban on travelers from a handful of majority-Muslim countries. According to the Trump administration, the federal courts have no business second-guessing the president's authority on an issue that affects national security.

I'd like to know if Judge Gorsuch agrees that the president's executive orders are beyond the reach of judicial review. How deferential must the federal courts be to the commander in chief?

3. Unenumerated Rights

The Constitution lists a number of individual rights, such as free speech and the right to keep and bear arms. But it also refers to rights that aren't explicitly mentioned.

For example, the Supreme Court has protected the right to privacy, the right of parents to send their children to private schools, and the right to gay marriage. None of these rights are mentioned anywhere in the text of the Constitution.

In his 2006 book, Judge Gorsuch was critical of reading the Constitution in this way. He wrote that the Due Process Clause of the 14th Amendment has been "stretched beyond recognition" in the name of defending unwritten rights.

I'd like to know if Judge Gorsuch thinks the same is true of the 9th Amendment and the Privileges or Immunities Clause, both of which refer to unwritten rights. Does he believe the Constitution protects any rights that aren't explicitly mentioned?

The American people deserve to hear what Judge Gorsuch has to say about these fundamental constitutional issues. Given all the unanswered questions about his jurisprudence, he should fully explain himself at this week's confirmation hearings.

Written by Damon Root. Shot by Jim Epstein. Edited by Joshua Swain.

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