News Release

Gorsuch: Using “Originalism” for a Right-wing Agenda

trumpMARJORIE COHN, marjorielegal [at] gmail.com, @marjoriecohn

Cohn is professor emerita at the Thomas Jefferson School of Law. Her books include The United States and Torture: Interrogation, Incarceration, and Abuse. She recently wrote the piece “Gorsuch Would Use ‘Originalism’ to Affirm Right-Wing Agenda,” which notes, among other things, that right-wing judges, like Neil Gorsuch and Antonin Scalia, avoid “originalism” when it goes against their agenda. She writes: “The Supremacy Clause, Article VI, section 2, says that ‘all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’

“During Scalia’s visit to Thomas Jefferson School of Law in San Diego, California, I cited the Supremacy Clause to him and asked him why the Court didn’t use more treaty principles in its decisions. He replied that treaties aren’t binding unless they’re implemented, or ‘executed’ by an act of Congress. I went back and read the words in Article VI, section 2, looking in vain for text that said treaties only become the supreme law of the land once they’ve been executed.”

Cohn also wrote “Neil Gorsuch and the Deconstruction of the Administrative State,” in which she writes: “When Donald Trump’s chief of staff Reince Priebus addressed the Conservative Political Action Committee in February, he identified two priorities of the administration: the confirmation of Neil Gorsuch to the Supreme Court, and deregulation.

“It turns out that elevating Gorsuch to the Supreme Court and achieving deregulation are inextricably linked.

“During Gorsuch’s confirmation hearing, Democratic members of the Senate Judiciary Committee challenged him on his pro-business positions.

“Minnesota Sen. Al Franken pressed him on a case — that of the now-infamous ‘frozen trucker’ — in which the judge reached what Franken characterized as an ‘absurd’ result.”

Charlie Savage reports in the New York Times: “Where Does Gorsuch Stand on Torture? It’s Hard to Say.” On March 15, Savage wrote the piece “Neil Gorsuch Helped Defend Disputed Bush-Era Terror Policies,” which notes: “In November 2005, for example, Judge Gorsuch visited Guantánamo for a briefing and tour. Afterward, he wrote a note to the prison operation commander, offering a glowing review. ….”