Justice Gorsuch Warns Biden To 'Be Careful' With Attempts To Control Supreme Court

Fewer laws and less government would be a better solution to judicial warfare.

There's nothing new in government officials complaining about judges standing in the way of schemes intended to impose some vision of the good life on the country but found to run afoul of the Constitution and the law. And with Supreme Court popularity low among Democrats, it's an opportune time for President Joe Biden to not only criticize justices but propose a plan for "reforming" the court in ways that might also give his allies greater control over the body. It's undoubtedly a political move—and one that invites a warning from Associate Justice Neil Gorsuch.

'Be Careful'

Asked this week by Fox News's Shannon Bream to respond to the Biden administration's proposed restrictions on the Supreme Court, as well as a constitutional amendment addressing one of its decisions, Gorsuch first cautioned that he didn't think it would be helpful "to get into what is now a political issue." But then he added:

"The independent judiciary means… What does it mean to you as an American? It means that when you're unpopular, you can get a fair hearing under the law and under the Constitution. If you're in the majority, you don't need judges and juries to hear you and protect your rights. You're popular. It's there for the moments when the spotlight is on you, when the government is coming after you. And don't you want a ferociously independent judge and a jury of your peers to make those decisions? Isn't that your right as an American? And so, I just say, be careful."

By itself, Gorsuch's response seems rather strong to a three-part proposal for a constitutional amendment rolling back the court's grant of wide-ranging immunity to presidents for official acts, term limits for justices, and a congressionally imposed code of conduct for members of the court. But Biden's proposal comes wedded to complaints that the court isn't producing his preferred outcomes, and amidst a continuous effort to delegitimize the country's highest judicial body.

Extreme Opinions and Shadow Special Interests

"In recent years, extreme opinions that the Supreme Court has handed down have undermined long-established civil rights principles and protections," Biden complained in Austin, Texas, after his administration's proposals were unveiled. He huffed about "scandals involving the justices" and then he alluded to "a decades-long effort to reshape the judiciary…backed by shadow special interests."

In themselves, the proposals are worthy of discussion. In particular, undoing the presidential immunity decision has merit, since it "raises questions about whether a former president can be held criminally liable for outrageous abuses that arguably qualify as official acts," in the words of Reason's Jacob Sullum.

But linked, as the proposals are, to implications that the court's decisions are the result of a corrupt cabal linked to a shadowy conspiracy, it's fair to suspect that a larger effort to hobble the Supreme Court is underway. That brings us to Gorsuch's brief paean to the value of an independent judiciary and his warning to "be careful" lest we lose that important quality.

Perhaps Not So Shadowy or Conspiratorial

"Extreme" opinions, it should be remembered, are in the eye of the beholder. While many of us would dispute decisions rendered by the high court, that doesn't mean that anything nefarious is at work, or that one faction is consistently riding roughshod over opposition.

"This term, the Court ruled unanimously in almost half (46 percent) of cases, which was similar to the year before (48 percent) and a significant uptick from the term before that (29 percent)," the Pacific Legal Foundation's Anastasia Boden noted last month for Reason. Achieving or approaching unanimity "were hot-button cases involving former President Donald Trump's eligibility for the presidency, access to the abortion drug mifepristone, the government's ability to dissuade companies from doing business with the National Rifle Association, regulation of social media companies, and the scope of the Second Amendment."

In particular, collaborations between Justices Neil Gorsuch (Trump-appointed) and Ketanji Brown Jackson (Biden-appointed) on criminal justice matters and challenges to government power "should cheer civil libertarians across the political spectrum," Mark Joseph Stern commented last year in Slate.

But Democrats, and especially progressives, are undoubtedly unhappy about the court's decisions on presidential immunity (at least when it comes to Trump), guns, student loans, the administrative state and, especially, abortion. That dissatisfaction "caused public opinion to question the court's fairness and independence," according to Joe Biden.

OK. But the questioning is highly one-sided.

Partisan Gamesmanship

"Partisans' ratings of the high court, which have been politically polarized in most years since 2000, continue to diverge, with 66% of Republicans, 15% of Democrats and 44% of independents approving," Gallup reported last month.

Given that public trust in government is in the toilet, and that the only institutions in which a majority of Americans have confidence are small business, police (barely), and the military, the Supreme Court is hardly alone in losing the faith of a large segment of the population.

Partisan disagreement over the court is also unsurprising. In this deeply divided nation, people support institutions controlled by their faction and despise those in "enemy" hands. Insincere "reforms" intended to bring the court under the control of other branches of government, especially coming so soon after thankfully short-circuited talk of packing the court with expanded ranks of progressive-leaning appointees, may rejigger which political tribe approves of the court and which doesn't. But they won't improve overall trust.

In truth, Speaker of the House Mike Johnson (R–La.) says the Biden administration's proposals are "dead on arrival" in Congress. That makes the plan just an attempt to delegitimize the court and rally the base. For a better solution to the country's woes, Gorsuch has another idea.

Fewer Laws Means Less To Fight Over

"When we turn to law to solve every problem and answer humanity's age-old debates about how we should live, raise our children, and pray, we invite a Leviathan into our lives," he and co-author Jane Nitze warn in an essay adapted by The Atlantic from their book Over Ruled: The Human Toll of Too Much Law.

They propose a nation of fewer laws and less government. That would give us less to fight about, including high-stakes court decisions and the justices who make them.

Comments

[Mickey Rat]

The Democrats do not want less government. Your proposal flies in the face of their stated ideological preferences. Most of what Biden is complaining about is the Court stripping the fedrral executive branch’s ability to make de facto law effectively independent of Congress and judicial review. Biden and his Party are specifically opposed to your solution, so that solution cannot happen with them in power.

[TJJ2000]

"but found to run afoul of the Constitution and the law. And with Supreme Court popularity low among Democrats"

Perfectly paraphrased as Democrats HATE the USA as it was founded and want it replaced with their/[our] 'democracy'/Democratic [Na]tional So[zi]al[ism].

Why are you even here in the USA Democrats? Why didn't you all scatter with your Great Britain Empire losers of the Revolutionary War?

[Sometimes a Great Notion]

They propose a nation of fewer laws and less government.

But how will we punish our political enemies with less laws?

- politicians/activists (hacks)

[Quo Usque Tandem]

[From my post re the other article re Neil Gorsuch; think it bears repeating]:

“Criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something,” Supreme Court Justice Neil Gorsuch observed in 2019.

“Show me the man and I’ll show you the crime.”

Lavrentiy Beria [the most ruthless and longest-serving secret police chief in Joseph Stalin’s reign of terror in Russia and Eastern Europe, bragged that he could prove criminal conduct on anyone, even the innocent]

This is why I am not a Democrat; their "vision of the good life" would undoubtably include criminal penalties for "hate speech," the banning of as many firearms as possible, imposed DEI measures, income redistribution, and even more regulations and agency empowerment in the guise of "saving the climate" [to name but a few] would render our lives ever more controlled and limited in terms of freedoms we largely take for granted.

[Earth-based Human Skeptic]

Democrats also promote identity politics and the primacy of racial/ethnic/gender groups above the individual. In their intersectional grievance world, what you look like matters far more than any trivial personal qualities. Equity is NOT the same as equality.

[Quo Usque Tandem]

I think the core problem here, as evidenced by NYT reporter describing a Harris/Wiltz campaign stop as "you could sense the power...of joy...laugher...hope for the future," is that expectations have risen to the point that it is the governments responsibility to solve all of your problems and make you happy. I should not have to pay via taxation or by loss of my liberties to make others feel personally fulfilled.

[Quo Usque Tandem]

Correction: MSNBC reporter

[Earth-based Human Skeptic]

Perhaps the coddling of young Americans by our political-education-entertainment complex was not incidental. How else can we achieve perpetual childhood and a life free from responsibilities without a comprehensive nanny state?

[Number 2]

At a certain level, how is the Democrat effort to delegitimize the Court (which seems thus far to have persuaded no one except themselves) different from Donald Trump claiming that the 2020 election was stolen? In each case, the government functioned in accordance with the constitution. In each case, sore loser(s) react by trying to delegitimize the result if not blow up the constitutional system altogether.

[LIBtranslator]

Gorbasuch will say anything to preserve socialism--national or international. Like Molotov carving up Poland, Gorbie has doublethought it over and realizes naziism in the hand is worth more than freedom whenevah. See Orwell's description of how ALL Brit socialists decided Hitler was, after all, a pretty good fellow socialist before the ink was even dry.

[Dillinger]

>>While many of us would dispute decisions rendered by the high court

ya pretty much since they got Marbury wrong. definitely since Wickard ... Filburn got jobbed.

[One-Punch_Man]

Hi, I'm the puppet that used to be Joe Biden. I've been in Congress for 50 years. I want term limit for others.

We all know it's political. We all know it's about Obama.

If anyone shouldn't have presidential immunity it should be Biden on not protecting the border, shadow money, lying about being about to do the job, and a host of other things.

But he isn't orange so ChemJeff doesn't care

[JFree]

“Extreme” opinions, it should be remembered, are in the eye of the beholder.

Extreme opinions are exactly the ones that judges should be held most accountable for. A sloppy opinion (esp a partisan one) that overthrows 250+ years of precedent is not one that should be excused and even implicitly praised as mere judicial independence.

[miss_x2m1]

First, let's have term limits for the Congress and Senate.

[See.More]

First, let’s have term limits for the Congress and Senate.

I agree with further conditioning that the limits are not on the Roles, but on the Individuals. No more than two terms, per person. Period. Not two terms as Representative, then two terms as Senator, and then two terms as President. Simply. Two terms. Full stop. Go home.

[Get To Da Chippah]

I agree in principle, but I think two terms in total is rather extreme, since many people start out as Congressional Reps before gaining enough name recognition to make running for Senate or other higher office worthwhile. I’d be okay with five total terms per person; the most you’ll get is someone in the Senate for thirty years — more than long enough, but pretty rare for that to happen. And keep the limit of two terms as President.

[LIBtranslator]

Hoover Republican eager to bring back Prohibition twists hankie into a knot as FDR proposes adding non-senile jurists to mystically fanatical superannuated court.