Supreme Court

Neil Gorsuch Vows to 'Respect' Supreme Court Precedent. That Does Not Mean He Will Always Uphold Precedent.

Understanding the SCOTUS nominee's answers to the Senate Judiciary Committee.

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C-SPAN

Neil Gorsuch has survived his confirmation hearings before the Senate Judiciary Committee and now, barring some unforeseen (and unlikely) disaster, he is well on his way to being confirmed as the next associate justice of the United States Supreme Court.

Gorsuch was interrogated for two full days by the 11 Republicans and nine Democrats of the Senate Judiciary Committee. Regrettably, just like most other recent SCOTUS nominees, Gorsuch mostly dodged the biggest questions, refusing to express his own legal views on most subjects that might conceivably come before him as a judge, including the propriety of various Supreme Court precedents.

What that meant was that almost every time that Gorsuch was asked about a hot-button legal issue—such as the constitutionality of abortion or the legality of gay marriage—he fell back on the same well-rehearsed answer. That issue has been decided by a "precedent of the Supreme Court," Gorsuch said again and again, and was therefore "due all the weight of a precedent of the Supreme Court."

What does that mean? Consider the 2009 Senate confirmation hearings of Sonia Sotomayor. She too was repeatedly asked about hot-button legal issues, particularly when it came to her views on the Supreme Court's 2008 Second Amendment decision in District of Columbia v. Heller. And her answers were also consistent. Heller is an "established" Supreme Court precedent, Sotomayor repeatedly told the Senate Judiciary Committee, and she "accepted" it.

Fast-forward one year later to the case of McDonald v. City of Chicago. Sotomayor is now a sitting justice of the Supreme Court and she joined the dissenting opinion filed in that case by Justice Stephen Breyer, in which Breyer asserted that "the Framers did not write the Second Amendment in order to protect a private right of armed self-defense." That statement is the exact opposite of what the Court held in Heller.

In sum, giving "weight" or "respect" or "acceptance" to "established" precedent is not the same thing as upholding and affirming that precedent. As Neil Gorsuch himself noted this week, the law of precedent has always included the option of overturning precedent in an appropriate case.

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  1. The snapping tearing whips of precedent are felt long after the lasher’s muse.

    1. What Agile means is that more often than not, a precedent serves to oppress liberty rather than preserve rights. so we shouldn’t necessarily worship precedent adherence as some kind of libertarian sacred cow.

  2. There’s confirmation, and then there’s what they actually do after they are appointed for life.

    Any any one who believes a judge is above personal, social, partisan or prejudiced beliefs and that such things do not play a part in their own precedent setting decisions, I’ve got some hot real estate for you. With plenty of mangrove trees on it.

    1. Spot on, Quo, but that won’t stop the mainscream media or the confirmation hearing folks from making predictions of the future, creating scenarios out of those predictions and then reaction to the potential outcomes of those scenarios…
      Sadly enough.

  3. I watched a few segments of the senate confirmation hearings last night on youtube. Gorsuch certainly knows his business, the law, and just about nothing else. I don’t like him. That’s a personal take. But I know why Trump did.

  4. Dred Scott was precedent,should that have been upheld?
    SCOTUS doesn’t always get it right,as in Dred,Kelo,Obergefell,and Robertscare.

    1. what’s important is that SCOTUS stick to the Constitution (original meanings) and not make up new law.
      Can Anybody comprehend the meaning and implications of “written law”?
      I know Sen. Feinstein cannot.She wants to return to the Rule of Kings,instead of the Rule of Law.
      she wans SCOTUS to be a group of ‘little Kings”,ruling by diktat,depending on their whims and popular opinions of the day.

      1. …. so long as those ‘little Kings’ come to conclusions agreeable to her and other socialists like Bernie and Fauxcahontas…

  5. Regarding the Second Amendment;
    the Second Amendment of the Constitution is NOT ABOUT hunting or sporting.
    it’s about the people retaining the ability to “alter or to abolish” a government gone bad,as written in the Declaration of Independence.
    the Founders had just overthrown their own incumbent government (Britain) by FORCE OF ARMS,and recognized that it might have to be done again in the future,thus the inclusion of the 2nd Amendment protecting the People’s RIGHT to keep and bear arms.
    The American Revolution BEGAN when the Brits moved to confiscate arms at Concord.
    the people (in militia) responded with privately owned arms.

    The Founders intended that citizens have “weapons of war”,and self-defense was considered “self-evident”,a natural right. And an extension of the national defense.

    1. Constitutional attorney Stewart Rhodes will explain The Second Amendment for you.

      …”The whole point of the Second Amendment is to preserve the military capacity of the American people – to preserve the ability of the people, who are the militia, to provide for their own security as individuals, as neighborhoods, towns, counties, and states, during any emergency, man-made or natural; to preserve the military capacity of the American people to resist tyranny and violations of their rights by oath breakers within government; and to preserve the military capacity of the people to defend the Constitution against all enemies, both foreign and domestic, including those oath breaking domestic enemies within government. ”

      If you disagree with or don’t like this,you live in the wrong country. you need to move somewhere else.
      This is a basic tenet of America. a core concept.

      1. Not quite.

        The second amendment was meant to prevent the Feds from disarming the states through the backdoor method of disarming the people.

        The Feds cannot regulate firearms because they would infringe on the state militia.

        To that end, the NFA is unconstitutional. I think the rationale for upholding it is that it isn’t a ban, it is a tax.

        The bill of rights preserved the ability of states to regulate firearms as they wished.

        Post civil war, republicans observed that southern states were disarming freed slaves. The 14th amendment prevents states from disarming the people.

        That said, I think there does remain room for states to disagree on the level of armament inherent in the privileges or immunities of citizens.

        I think it is consistent with the constitution if texas allows machine guns and california doesn’t.

        I think it is also consistent for the Feds to set a minimum a standard for personal armament.

        1. Fuck off Slaver!

          Government has no control at any level to regulate rights.

      2. I find the words of those who wrote it and passed it to have a lot more weight than those of some modern revisionist and that is *not* what they said.

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  7. “the Framers did not write the Second Amendment in order to protect a private right of armed self-defense.”

    the right of the people to keep and bear Arms, shall not be infringed.

    Kinda hard to reconcile those two things.

    If you can figure out how to get any sort of categorical ban on weapons shoehorned into “shall not be infringed”, you are a lesser man than I. Any judge who believes that there are unwritten parenthetical phrases in the bill of rights (i.e. “Shall not be infringed, unless it is really important.“) should absolutely be declined a seat on the high court.

    I have a simple rule for you judges: If the law says something in plain language, you can’t issue rulings that are at odds with that plain language.

    “Shall not be abridged” is absolute. There is no hidden “unless” in that phrase. If there are important policy reasons for an “unless”, then there is a process for amending the constitution to add the “unless”.

    1. “Shall not be infringed” by the Feds.

      The states did not ratify the constitution for the purpose of restricting themselves.

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