The nihilism of Neil Gorsuch

Neil Gorsuch was ready to blow up the US housing market over a minor legal violation.

The case in front of the Supreme Court was Collins v. Yellen (2021), which had at its center the Federal Housing Finance Agency (FHFA), an obscure body that oversaw hundreds of billions of dollars’ worth of transactions intended to stabilize the housing market after the 2008 recession. The FHFA is led by a single director whom only the president can fire “for cause.” The plaintiffs in Collins v. Yellen argued the president must have unlimited power to fire the agency’s head, citing the Supreme Court’s 2020 ruling in Seila Law LLC v. Consumer Financial Protection Bureau (CFPB).

But under the Collins plaintiffs’ arguments, it also followed that if the FHFA head was fired, every action the agency had taken since its creation in 2008 should be declared void — a truly radical prospect. That argument won very little favor from the justices. In June, the Court handed down a relatively modest opinion that gave President Joe Biden (and all future presidents) the power to fire the FHFA director without reversing the agency’s past work.

But Gorsuch would have none of it.

In a partial dissent, Gorsuch complained that his colleagues were too spooked by the prospect of “unwinding or disgorging hundreds of millions of dollars that have already changed hands” (an underestimate of the amount of money at stake by several orders of magnitude). The proper approach, Gorsuch opined in Collins, was to declare the FHFA’s actions “void.”

If Gorsuch had gotten his way, 13 years of work and hundreds of billions of dollars’ worth of transactions would have been unraveled, possibly delivering a shock to the mortgage-lending industry similar to that of the 2008 crisis — or even sending the world economy into a tailspin.

And yet, for Gorsuch, the potential consequences were irrelevant to how the Court should rule.

Eric Thayer/Getty Images

It wasn’t the only case this term where Gorsuch brushed aside worries about widespread disruption that could have done tremendous harm to millions of people. Six days before the Collins ruling was handed down, the Court decided California v. Texas (2021), the most recent attempt by Republicans to repeal the Affordable Care Act by judicial decree. This latest attack on Obamacare rested on legal arguments so weak, they were widely derided even by many of the ACA’s most outspoken critics.

Gorsuch and Samuel Alito were the only two justices who argued that the Court should set fire to the Affordable Care Act. Had their views prevailed, approximately 31 million Americans would have lost health insurance.

In his four years on the Court, Gorsuch has staked out a more ambitious agenda than many preceding justices articulated in four decades, and he has seized every opportunity to implement as much of this agenda as possible. He arguably has a better sense of where he wants to take the law than any other member of the Court. He is broadly anti-government, skeptical of democracy and the institutions that make it possible, and eager to centralize power within the judiciary.

That worldview and his certitude of its rightness are married with a willingness, even eagerness, to impose draconian consequences on the nation if he catches someone violating his often-quite-unusual ideas about what the rules should be.

That’s a troubling combination in anyone, but it’s a potentially dangerous one in a judge. And while Gorsuch doesn’t always get his way — even on a 6-3 conservative Court — his overarching view that power should be concentrated within the judicial branch has broad support among his Republican-appointed colleagues.

Gorsuch’s selective textualism

The lodestar of Gorsuch’s rhetoric about how judges should interpret the law is “textualism,” which he described in a 2020 book as the idea that judges’ sole task when interpreting legal texts is to determine “what an ordinary English speaker familiar with the law’s usages would have understood the statutory text to mean at the time of its enactment.”

Proponents of textualism — and of its close cousin originalism, which applies the same methodology to the Constitution — often hold it up as a politically neutral approach that prevents judges from substituting their personal preferences for the law. “Textualism,” Gorsuch writes in his book, requires judges to “determine impartially and fix what the law is, not simply declare what it ought to be.”

In reality, this method rarely lives up to such lofty promises. Many legal texts (including much of the Constitution) are ambiguous and can be fairly read in many ways. And what should a court do if it concludes that a century-old decision — one that millions of individuals and businesses may have relied on for decades — misread the text of a statute? Should 100 years of settled law be upended?

Setting aside textualism’s flaws, Gorsuch’s record on the Supreme Court exposes just how spotty his application of the methodology is. Though his own opinions frequently preach the gospel of textualism, he’s shown no compunction about joining other justices’ opinions that treat the text of a statute as merely optional.

Consider, for example, Justice Samuel Alito’s majority opinion in Brnovich v. Democratic National Committee (2021), a 6-3 decision along partisan lines, which imposed novel, extratextual limits on the Voting Rights Act.

Brnovich, in Justice Elena Kagan’s words, “mostly inhabits a law-free zone.” Alito’s opinion invents new constraints on the Voting Rights Act — such as a strong presumption that voting restrictions that were commonplace in 1982 are lawful — that appear nowhere in the act’s text. It is the quintessential example of judges declaring what they think the law “ought to be” rather than determining impartially what a statute actually says.

Yet Gorsuch joined Alito’s opinion in full — even though he wrote a separate concurring opinion suggesting that the Court should impose additional limits on the Voting Rights Act that could deactivate it completely during Republican administrations. It’s a neat trick. By leaving the dirty work of mangling a statute to his colleague, Gorsuch saved himself from the difficult task of explaining why textualism does not apply to the Voting Rights Act.

Gorsuch is also perfectly willing to follow anti-textualist precedents that yield conservative results. His first major Supreme Court opinion, Epic Systems v. Lewis (2018), fits this mold.

In theory, Epic Systems asked the Court to interpret the Federal Arbitration Act. Enacted in 1925, the act was supposed to, in Justice Ruth Bader Ginsburg’s words, enable “merchants with relatively equal bargaining power” to agree to resolve their disputes before a private arbitrator rather than through a more lengthy and burdensome litigation process. Importantly, the act’s text exempts “workers engaged in foreign or interstate commerce” — so the statute was never supposed to enable arbitration in employment disputes.

Epic Systems concerned two previous decisions that butchered the act’s text. In Circuit City v. Adams (2001), the Supreme Court held that the act does, in fact, apply to most workers engaged in foreign or interstate commerce. The upshot of Circuit City is that employers can force their workers to sign away their right to sue the employer in a real court as a condition of keeping their job. (There is some nuance to the Circuit City opinion, but it doesn’t change the fact that it is an abomination against textualism. I explain in detail why Circuit City was wrong here.)

The other previous decision was AT&T Mobility v. Concepcion (2011), which held that, under the Arbitration Act, companies may force workers or consumers to sign away their right to bring a class action as a condition of doing business with that company — something the Arbitration Act has nothing to say about whatsoever.

Epic Systems sat at the intersection of these two previous anti-textualist decisions — and Gorsuch wrote the majority opinion ruling in favor of the employers. Under Epic Systems, employers can force their workers to sign away their right to join together in a single lawsuit against their employer, and that employer may also force those workers into arbitration.

Decisions such as these show that Gorsuch’s commitment to textualism can be little more than hot air. He is a selective textualist, who frequently evangelizes in favor of this method of interpretation but often abandons it in cases that reach a conservative result.

In fairness, Gorsuch’s selectivity has led to the occasional surprise. Any liberal critic of Gorsuch’s imperfect textualism must confront his majority opinion in Bostock v. Clayton County (2020), which held that a federal law banning “sex” discrimination in employment prohibited discrimination on the basis of sexual orientation and gender identity. Bostock represents the high-water mark of Gorsuch’s commitment to textualism.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch explained. An employer who fires a male employee for being attracted to men engages in “sex” discrimination, for example, unless they would also fire female employees who are attracted to men.

Similarly, if an “employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth,” then that “employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

Bostock gave Gorsuch a prime opportunity to demonstrate that textualism was more than just an excuse to reach conservative results, and his opinion in Bostock triggered rage from the more strident elements of the religious right. “If we’ve been fighting for originalism and textualism, and this is the result of that,” Sen. Josh Hawley (R-MO) said of Bostock, “then I have to say it turns out we haven’t been fighting for very much. Or maybe we’ve been fighting for quite a lot, but it’s been exactly the opposite of what we thought we were fighting for.”

But Gorsuch should hardly be seen as a champion of LGBTQ rights. He is one of the Court’s most outspoken proponents of the idea that religious conservatives should be allowed to ignore many laws, including those banning LGBTQ discrimination, if they object to those laws on religious grounds.

Bostock could still prove to be a significant victory for LGBTQ rights. But his record on religious liberty suggests Gorsuch is likely to significantly water down the single most significant textualist victory he’s handed to liberals.

Gorsuch v. democracy

Few justices in recent years have shown more hostility toward the right to vote and toward democracy more broadly than Neil Gorsuch. His opinion in Brnovich, where he suggested that the Voting Rights Act could cease to exist during Republican administrations, is fairly typical of his approach to the franchise.

The Court’s decision in Andino v. Middleton, which was handed down about a month before the 2020 election, offers another data point.

In Andino, the Supreme Court reinstated a South Carolina law requiring absentee voters to have another person sign their ballot as a witness, after a lower court had blocked this law. When the justices handed down their decision, however, the lower court’s order had already been in effect for several weeks and at least 20,000 voters had already cast an early ballot in South Carolina.

A majority of the Supreme Court carved out a sensible exception to its decision, holding that “any ballots cast before this stay issues and received within two days of this order may not be rejected for failing to comply with the witness requirement.” Gorsuch, however, rejected this carve-out. He, along with Justices Clarence Thomas and Alito, would have tossed out all ballots that lacked a signature — even if those ballots were cast in accordance with the rules that were in place at the time.

Gorsuch also joined the Court’s opinion in Rucho v. Common Cause (2019), which held that federal courts may not intervene when state lawmakers use partisan gerrymanders to lock their party into power. And, in a concurring opinion in Democratic National Committee v. Wisconsin State Legislature (2020), Gorsuch would have given state legislatures sweeping new authority to ignore constitutional constraints on their ability to write new election laws.

“The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Gorsuch wrote in Democratic National Committee.

Taken to its logical extreme, this position could prevent Democratic governors in states like Wisconsin and Pennsylvania from vetoing voter suppression laws or partisan gerrymanders by those states’ Republican legislatures (legislatures, it is worth noting, that often have inflated GOP majorities due to gerrymandering). It could also prevent states from setting up independent redistricting commissions to combat gerrymandering. And it could strip state supreme courts of their power to strike down election laws that violate the state constitution.

As Gorsuch votes to limit the franchise and make it easier for Republican lawmakers to skew the results of elections, he has also launched a direct attack on the free press — an institution that is essential to any democracy.

It’s become fashionable for justices across the partisan divide to blame the media for the fact that the judiciary is increasingly seen as political. Justices Thomas, Stephen Breyer, and Amy Coney Barrett all recently blamed the press for, in Thomas’s words, suggesting that judges place their “personal preference” ahead of the law.

But Gorsuch is one of only two justices (Thomas is the other) who has explicitly called on his Court to strip away First Amendment rights from journalists.

Rob Carr/Getty Images

New York Times v. Sullivan (1964) is the Court’s single most important decision protecting journalists’ ability to report the news without intimidation from government officials. The case involved a lawsuit by a Jim Crow-era Alabama official, who won a $500,000 verdict against the Times, after the paper published an advertisement purchased by civil rights activists. Alabama courts justified this verdict because the ad contained minor factual errors (such as claiming that Martin Luther King Jr. had been arrested seven times, when he’d actually been arrested four times).

New York Times established that government officials may not use malicious defamation suits to target free speech — and to target news outlets that play an essential role in a democracy. Under the Court’s decision, when someone speaks about a public figure regarding a matter of public concern, they cannot be liable for making false statements unless such a statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

And yet, in a dissenting opinion in Berisha v. Lawson (2021), Gorsuch labeled New York Times an “ironclad subsidy for the publication of falsehoods” and suggested that the “law of defamation” should be determined “almost exclusively” by the states.

It’s difficult to exaggerate the perils of Gorsuch’s approach. Imagine, for example, that I mistakenly report that “2,600 people attended a rally protesting a speech by Florida Gov. Ron DeSantis,” when, in fact, only 2,400 people attended the rally. If states are free to set their own defamation law, DeSantis could potentially sue me and Vox Media for millions, endangering our ability to continue to report the news — and chilling reporting on DeSantis by other outlets.

New York Times v. Sullivan is what prevents a Viktor Orbán-style assault on the freedom of the press. It is the reason I know that I am safe from my government, even as I write this article criticizing one of its most powerful officials.

The man who would be a philosopher king

When Gorsuch first arrived at the Court, he seemed unlikely to exert much influence over his colleagues in a hidebound, monastic institution whose members have, historically at least, tried to convey the impression that they are engaged in something other than pure politics.

For one thing, shortly after his confirmation, Gorsuch seemed to go on a “thank-you” tour, rewarding Republican officials and advocates who gave him his new gig. This included a speech to a conservative group at then-President Trump’s hotel in DC, a speech alongside then-Senate Majority Leader Mitch McConnell at the University of Louisville’s McConnell Center, and a final victory lap at the conservative Federalist Society’s annual convention.

“There’s a reason we questioned his independence during his confirmation hearings,” Senate Democratic leader Chuck Schumer said in a statement regarding Gorsuch’s Trump hotel speech. Deborah Rhode, a Stanford legal ethics professor, was even more critical, telling the Washington Post that “all of this indicates that he’s just ethically tone-deaf.”

Gorsuch also picked nonstrategic fights, sometimes with his fellow conservatives. In a case involving a labyrinthine statute that even many of the justices struggled to parse — Justice Alito asked during oral argument, “Who wrote this statute, somebody who takes pleasure out of pulling the wings off flies?” — Gorsuch wrote a smug and condescending dissent attacking his colleagues for failing to read the statute as he did.

“Congress already wrote a perfectly good law. I would follow it,” the recently confirmed Gorsuch lectured the seven justices in the majority.

Meanwhile, Gorsuch’s ponderous writing style (“Chesterton reminds us not to clear away a fence just because we cannot see its point...”) spawned a Twitter hashtag, #GorsuchStyle, where lawyers took turns mocking the new justice’s purple prose. “Since his elevation to the Supreme Court,” Slate’s Mark Joseph Stern wrote in a 2018 column, “Gorsuch’s prose has curdled into a glop of cutesy idioms, pointless metaphors, and garbled diction that’s exhausting to read and impossible to take seriously.”

Two things happened since Gorsuch’s early mishaps, however. One is that his writing got better. Stern conceded a few months after his column that “the justice’s writing has markedly improved.”

The other is that Gorsuch appears to have assembled a majority within the Court for one of the most consequential changes to American law in recent memory.

Justin Sullivan/Getty Images

One of Gorsuch’s major projects since becoming a judge is diminishing the power of federal agencies to regulate private businesses and individuals. Congress frequently delegates power to these agencies in order to implement policies that are too complex for the legislature to implement on its own. The Clean Air Act, for example, requires certain power plants to use the “best system of emission reduction” that is cost-effective, but charges the Environmental Protection Agency with determining what the “best system” is at any given moment as emission-reduction technology improves.

For many years, the Court warned judges to be very careful about second-guessing how federal agencies exercise this regulatory power, in part because agencies tend to have specialized policy expertise that judges lack, but also because agencies like the EPA have more democratic legitimacy than the judiciary. Although “agencies are not directly accountable to the people,” the Court explained in Chevron v. Natural Resources Defense Council (1984), the president who appoints agency heads is accountable through elections. Thus, it is “entirely appropriate for this political branch of the Government to make such policy choices.”

Gorsuch, however, approaches federal agencies with the same hostility as he shows toward democracy — and the same unmitigated confidence in an increasingly right-wing judiciary. For him, the mere fact that agency officials are responsive to electoral politics makes them suspect. In a 2016 opinion, urging the Supreme Court to overrule Chevron, then-Judge Gorsuch held up judges as paragons — “independent decisionmaker[s]” whose job is to “declare the law’s meaning as fairly as possible.” Meanwhile, officials who are accountable to an elected president are “politicized” and eager “to pursue whatever policy whim may rule the day.”

Gorsuch appears poised to win this fight, and then some. In his dissenting opinion in Gundy v. United States (2019), he effectively tried to give the judiciary a veto power over any agency regulation that its members do not like. While his opinion in Gundy was a dissent, he’s since convinced a majority of his colleagues to see this issue his way.

Which leads to the quality that may well determine his legacy: Gorsuch has shown a genuine talent for building a coherent doctrinal framework around the Court’s most results-driven decisions.

Gorsuch’s retconning of Justice Alito’s majority opinion in Glossip v. Gross (2015) is a good example. Glossip arose after many drug manufacturers stopped selling reliable sedatives to states that wished to use them in executions. Without access to these drugs, some states turned to painkillers of dubious reliability. In at least some cases, these unreliable painkillers caused death row inmates to effectively be tortured to death.

And yet, Alito wrote a majority opinion suggesting that enforcing the death penalty is a value of such superlative importance that states must be free to execute people even if they are tortured. “Because it is settled that capital punishment is constitutional,” Alito wrote, “it necessarily follows that there must be a constitutional means of carrying it out.”

Alito essentially reached the result he wanted by assuming his own conclusion.

Enter Gorsuch. A few years after Glossip, in Bucklew v. Precythe (2019), Gorsuch wrote the majority opinion in a very similar case brought by an inmate who did not want to die in agony. Yet while Alito built his entire Glossip opinion around a logical fallacy, Gorsuch’s Bucklew opinion was much more ambitious.

For many decades, Supreme Court decisions interpreting the Eighth Amendment’s safeguard against “cruel and unusual punishments” followed a framework announced by Chief Justice Earl Warren in a 1958 opinion: “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

But in Bucklew, Gorsuch ignored this framework altogether, instead suggesting that the scope of the Eighth Amendment was determined over two centuries ago and it may never change. “Death was ‘the standard penalty for all serious crimes’ at the time of the founding,” Gorsuch wrote. “Nor did the later addition of the Eighth Amendment outlaw the practice. On the contrary — the Fifth Amendment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a ‘capital’ crime and ‘deprived of life’ as a penalty, so long as proper procedures are followed.”

With this brazen ruling, Gorsuch produced a majority opinion that is likely to have far more impact than Alito’s decision in Glossip. While Glossip preserved the ability of states to execute people, even if they must inflict severe pain in order to do so, Bucklew did all of that and it announced a revolutionary new framework that could upend more than 60 years of Eighth Amendment jurisprudence.

When Gorsuch has the chance to write a majority opinion, in other words, he typically shoots for the moon. His jurisprudence shows utter disregard for the norms of an institution he now belongs to, and for the work of generations to come up with a system of law that can manage a pluralistic society. It’s a revolutionary project, breathtaking in its audacity and nihilistic at its core.

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