It has finally happened. The empty seat on the United States Supreme Court—created by the unexpected death of Antonin Scalia and perpetuated by an almost year-long Republican blockade—seems as though it might, at last, be filled. Donald Trump, at the start of his second week in power, nominated Neil Gorsuch, a judge for the US Court of Appeals for the 10th Circuit in Denver, to join the highest court in the land.
Even in these first weeks since the announcement, much has already been written about Gorsuch’s judicial philosophy and prior rulings. He has been described as “a conservative in the mold of Justice Scalia,” and his attitudes toward constitutional interpretation have been categorized by the right as “textualist” or “originalist,” meaning, supposedly, “someone who interprets legal provisions as their words were originally understood.”
Eight hours before Gorsuch’s nomination was announced, I was in a classroom at the University of Michigan, leading my creative writing workshop through a discussion of The Racial Imaginary: Writers on Race in the Mind, a collection of essays edited by Claudia Rankine, Beth Loffreda, and Max King Cap. We were delving into the guiding analysis of the book’s introduction, penned by Rankine and Loffreda. Among their many insights is the notion that “we are all… the bearers of unwanted and often shunned memory, of a history whose infiltrations are at times so stealthy we can pretend otherwise.” In other words, the historical biases of American culture—racial in this context, but easily encompassing gender, sexuality, and class as well—continue to exist within us and within our minds, because we are a product of that history. Consequently, it is a mistake, Rankine and Loffreda claim, to act “as if the imagination is… not created by the same web of history and culture that made ‘me.’” They argue that we cannot separate our minds from the world in which they are trained to think, so the creative writing we do—the products of our imaginations—can carry in it and reflect those inherited biases. Ultimately, Rankine and Loffreda suggest that writers consider a strange possibility: “that their imagination is not their own.”
Rankine, Loffreda and Cap are interested in these concepts as they relate to creative writing and race, but their insights—which followed me out of the classroom that day—shed a different light on the looming confirmation battle over Gorsuch’s appointment, which I read about later that night. Democrats were already framing the debate as an evaluation of Gorsuch’s position relative to the “legal mainstream,” hoping they might justifiably block his confirmation by casting his judicial philosophy as outside of current norms. It seemed, then, that this battle would prove an old argument, a potential rerun of Robert H. Bork’s nomination defeat in 1987.
But there is something different in the water now, another layer to the outcry at Gorsuch’s appointment that even establishment Democrats are perhaps overlooking. Gorsuch’s affinity for originalism, while perhaps a peripheral approach to Constitutional law in 1987, has since been normalized—at least on the right—by Antonin Scalia’s 30 years on the Supreme Court. What the left refutes, therefore, is not the nature of Gorsuch’s ideology, but the consequences of that thinking and the implied perspective of that ideology. The left has not forgotten Scalia’s record, his efforts to limit abortion rights, enable the exploitation of labor, or gut the Voting Rights Act. But the left is also realizing that Scalia’s methods—and ergo Gorsuch’s—undoubtedly originate from a psychology of disenfranchisement, a mindset born within racist, sexist, and elitist cultural norms.
If the goal of Gorsuch’s originalism is to interpret “legal provisions as their words were originally understood,” then, as Rankine, Loffreda, and Cap make clear, this is an exercise in adopting the mentality of an 18th-century, landholding, slave-owning white male. It is an exercise in reading the Constitution as a person of extreme privilege and without regard for citizens and rights not originally or directly addressed by our founding documents. It is to think like Senator Jefferson Davis, when he proclaimed on the senate floor in 1860 that “this government was not founded by negroes or for negroes, but by white men for white men.” It is to ignore the Ninth Amendment and approach the text in a way that allowed Scalia to describe sections of the Voting Rights Act—a law put in place to guarantee equal access, not advantage, to a constitutionally defined right—as “racial entitlements.”
The outrage on the left to Gorsuch’s appointment only partly derives from the Republican obstruction of Obama’s last Supreme Court nominee. In reality, both the GOP opposition to Garland and Gorsuch’s ideology come from the same place, the same kind of thinking. The Republicans’ originalist approach to the Constitution allowed them to interpret “advise and consent” narrowly, as though the appointment of Supreme Court nominees was a power ultimately vested in the Senate and not the executive branch. Similarly, Gorsuch’s philosophy allows him to elevate “original,” or explicitly stated, civil liberties, such as religious freedoms, above more recently confirmed rights, such as a woman’s right to an abortion. As a result, he can rule in favor of Hobby Lobby’s desire to not provide holistic healthcare to its employees, including contraception for women, because the owners have a moral objection to the Affordable Care Act. Under the philosophy, Gorsuch can affirm the rights of corporation—a bodiless legal entity—even when such a decision limits the rights of actual human beings.
The Constitution is the product of our founders’ imaginations, and it is fair and logical to admit that their thinking was influenced, even limited, by the cultural and social ideologies of their era. At the same time, there is plenty of evidence in the text of the Constitution to indicate they intuited the evolving nature of our democratic experiment, and that they created the necessary space for unenumerated rights as well as the opportunity for change and revision.
Consequently, some on the left are beginning to see, following Scalia’s lengthy and bombastic tenure, that strict adherence to the Constitution’s language and the implied objectivity of interpreting only what’s there are obfuscating definitions of Gorsuch’s and Scalia’s shared judicial philosophy. Some on the left, much as they have come to understand the war on drugs to truthfully mean a war on minorities, are awaking to the sinister blankness of terms like “originalism” and “textualism.” Their outcry is not one of revenge for abdication of duty on the part of Senate Republicans, nor is it a temporary and reactionary objection to Donald Trump’s agenda, nor is it about the rulings Gorsuch may or may not eventually hand down. Rather, the opposition comprehends a deeper truth: the fight this time is about preventing the return to the bench of a perspective that understands the Constitution as a document drafted by and solely created for an insular community of privileged white males.
These voices rising from the left may seem excessive to those who see this confirmation as a familiar fight, but as Baldwin reminds us, “People who treat other people as less than human must not be surprised when the bread they have cast on the waters come floating back to them, poisoned.”
