On January 31st, Neil Gorsuch was nominated by Trump to fill the ninth seat on the Supreme Court, a seat which has remained empty ever since the death of Justice Antonin Scalia on February 13th, 2016, just 20 minutes shy of one year as I write this*. Gorsuch’s successful nomination would essentially return the balance of power in the Supreme to five conservative justices and four liberal justices (although the Reagan nominated Justice Kennedy has been fairly moderate on abortion in the past). Gorsuch’s confirmation would potentially affect a great many issues. Among these issues is abortion. With Gorsuch’s nomination and certain promises made by Trump during the campaign, there has been some talk among conservatives of the possibility of overturning Roe v. Wade, the forty-four year old Supreme Court decision which in essence made abortion legal. So let’s take a look at abortion and how Gorsuch’s confirmation might affect it.
Gorsuch has been described as a Constitutional Originalist. An excerpt from a speech he made at Case Western Reserve University in 2005 tellingly sums up what this means to him. He said that judges should strive, “to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” At a glance there is nothing wrong and certainly nothing illegal with this stance. Constitutional Originalism or not, the courts have the ability to interpret EXISTING laws. For abortion this means defining life and when it begins. Unless a law is specifically passed by congress defining life as beginning at conception or not, the legal interpretation of whether abortion is murder is up to the courts. How might Gorsuch’s Constitutional Originalism define this? According to Gorsuch it would seem that applying Constitutional Originalism to abortion means deciding, “what a reasonable reader at the time of the events in question (laws against murder in the case of the abortion question) would have understood the law to be.” Put more simply, “What would the original writers and ratifiers of the Constitution think of abortion?” As radical and ahead of their time as many of our Founding Fathers were, they were still products of the 1700’s. They didn’t even allow women to vote**. It’s highly unlikely that they would have approved of terminating a pregnancy. To them this likely would have been considered an unnatural, murderous act. But we don’t live in the late 1700’s.
So the question is, do we interpret our Constitution according to 18th century values (duels, slavery, no vote for women) that no longer apply to the modern world, or do we interpret our Constitution according to the more nuanced, complicated world we live in now? Not that the world wasn’t complicated in the 1700’s, but their view of the world was uncomplicated by today’s standards. In today’s world we know better. We know that gray areas abound. And where gray areas abound, the FREEDOM of individual citizens to interpret those gray areas for themselves must be given and PROTECTED by the government. Without choice to make such decisions for ourselves we cannot be considered free. So the question becomes: Are we to live free to interpret these gray areas, as is our right, or not free? Gorsuch would choose the later, not for our sake, but for the sake of Originalism.
*We are currently 26 days away from reaching the record of 391 days with an empty seat on the Supreme Court. This is thanks to the Republican leadership creating a bizarre eighth year rule where Presidents don’t have the Constitutional right to appoint judges even though the Constitution explicitly says, “and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court…” Gorsuch may be a Constitutional Originalist, but Mitch McConnell clearly isn’t.
**It is worth noting that some Constitutional Originalists would argue that though rights like a woman’s right to vote were not in the original draft of the Constitution, Constitutional amendments exist precisely to fix such oversights and necessities. Supreme Court decisions were not required to give women the right to vote. A Constitutional amendment did that and that’s how it should be done, they might say. However, it is worth noting that even after giving African Americans the right to vote with the 15th Amendment in 1870, they were still denied that right even after such court cases as Giles v. Harris in 1903 where the court blatantly failed to uphold and therefore enforce the 15th Amendment. It took yet another piece of legislation nearly a century after the passage of the 15th amendment, The Civil Rights Act of 1965, to enforce African Americans’ right to vote which should have been enforced under the 15th Amendment in the first place. Courts have CLEARLY FAILED not only to uphold the spirit of the law at times, but have failed to uphold the law at the extreme detriment of American citizens and their rights. Freedom is the spirit of American law and the American Constitution. That is what judges should be most concerned with upholding.