There was a lot of hype and uncertainty surrounding what kind of Supreme Court nominee President Trump had in mind towards the end of his 2016 presidential campaign, and what his eventual choice would be. He promised someone who would be the next Antonin Scalia: An originalist, who believed in maintaining the interpretation the Founders intended when writing the Constitution.
With Neil Gorsuch’s nomination to the Supreme Court on Tuesday, we’re getting exactly what President Trump promised — and that’s a good thing. Gorsuch is an originalist, and is a walking carbon copy of what we got with Scalia.
Gorsuch isn’t a libertarian, but he was undoubtedly the best choice out of Trump’s list of 21 individuals that were in consideration for the position — aside from maybe Mike Lee, but Lee is more valuable as a senator. With Gorsuch we’re getting a Supreme Court justice who will protect our constitution from being stretched even more by the left, and help to be a proponent of small government values.
He’s a strong defender of religious freedom, and a staunch supporter of states’ rights. While many libertarians like myself want government to be even more decentralized than the state level, having yet another proponent of decentralization is a huge win for libertarians.
Gorsuch’s nomination is also a win for pro-life libertarians. While Gorsuch hasn’t ruled or given an official opinion on abortion or Roe v. Wade, as a principled conservative and originalist, we can expect him to be a fierce proponent of a pro-life ethic. To Gorsuch, “human life is fundamentally and inherently valuable.”
Gorsuch is also against the Chevron doctrine, a precedent set in the 1980s which allows judges to defer to federal agencies when laws from Congress are ambiguous, saying that the precedent “certainly seems to have added prodigious new powers to an already titanic administrative state.” This is where Gorsuch differs from Scalia, who believed in the doctrine. This may indicate that Gorsuch is even more consistent on small government values than Scalia was.
When it comes to how Gorsuch will act in the courts, we can tell that like Scalia, he is very much against judicial activism and legislating from the bench. In a 2005 article he penned for the National Review, he noted that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda.” Libertarians should be thrilled about this. While the Obergefell v. Hodges decision did undeniably advance liberty, it waded into murky waters and set a dangerous precedent — that the Supreme Court should legislate from the bench. The fact that Gorsuch believes the Court should not do so is a great sign. The Court is meant to interpret laws, not create them.
Where libertarians will start to have a few problems with Gorsuch, however, is where his pro-life stance bleeds into that of assisted suicide. He authored a book titled The Future of Assisted Suicide and Euthanasia in which he argues that both should be illegal practices — which goes directly against the general libertarian idea that you should be able to end your life at your own free will if you so desire.
On issues like the legalization of marijuana and gun rights, there’s a lot of room to speculate since he hasn’t given official stances on any of those issues. The most likely case when it comes to gun rights is that he will be a strong supporter of the right to bear arms. When it comes to marijuana however, one can only wonder whether he takes a more conservative stance and opposes legal marijuana, or if he channels his belief in states’ rights and thinks we should leave it up to the states.
While he may not have written many opinions on many of the hot-button issues, Gorsuch has a consistent track record of erring on the side of originalism and a strict interpretation of the Constitution.
Even if you don’t believe that Gorsuch is the right pick, or a good pick, he’s miles better than the other frontrunner at the time – Thomas Hardiman. Multiple studies — including one by a Washington University of St. Louis professor, and another led by an assistant professor at Walter F. George School of Law — have showed that when observing many factors, most notably the possible nominees’ records as judges, that Hardiman was very likely to be a moderate judge, which may have spelled trouble for small government values.
While he may not be the libertarian we want, and he may not be Judge Napolitano (though Napolitano gave him a strong stamp of approval, and actually helped Trump decide during the process), he was the best on the list. Overall, libertarians have a lot to look forward to.
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Nicholas Amato
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