A Few Places Where Justice Gorsuch Can Make A Difference

You may be surprised to learn that, even in these highly contentious times, the U.S. Supreme Court decides about half or more of its cases unanimously.  For example, from the New York Times, July 3, 2014:

The court is indeed often united, and it will end this term with unanimous decisions in more than half of its cases. Over the past four terms, even the members of the court least likely to agree voted together 66 percent of the time.

But those unanimous decisions tend to be the ones that few people care about and that don't make the front pages of the newspapers.  Then there are the cases that go to the essence of our Constitution and the nature of our government.  To pose the key question:  Is the United States a country that is run by the government, or is it a country that is run by the people?  If you were to read the Constitution or the Federalist Papers you would very likely come away with a strong impression that the whole idea is that the country is to be run by the people rather than by the government.  Yet, in recent years (up to the death of Justice Scalia) when a case posed an issue related to that fundamental question, the result was very often decided by a vote of 5 to 4.  And when it was 5 to 4, almost always the four liberals and four conservatives would both vote as blocs, leaving Anthony Kennedy as the mostly-but-not-reliably-conservative swing vote.  

The overriding philosophy of the "liberal" bloc has been discussed many times on this blog, and there is nothing complicated about it.  The basic concept is that the government consists of neutral, apolitical experts whose job it is to move us all towards greater and then perfect justice and fairness through the magic of more and more laws, rules and regulations.  The neutral experts must be given full authority and discretion to rule over the people in order to complete this project.  Obviously the government must run the country, because otherwise there would be chaos!  Or, even worse, unfairness! 

In case you don't keep track of these things, you might find interesting a little mini-roundup of a few of the big issues that split clearly along the ideological divide.

First Amendment/Citizens United.  One of the provisions of the so-called Bipartisan Campaign Reform Act of 2002 (often referred to as "McCain-Feingold") made it illegal for corporations and unions to use their general treasury funds to make independent expenditures for speech that expressly advocated for the election or defeat of a candidate in an election.  The idea was to move toward the perfect justice and fairness by "getting money out of politics."  A federal bureaucracy (the Federal Election Commission) would do away with the chaotic free-for-all of free speech and replace it with government say-so as to who could say what and when.  The Supreme Court struck that down as unconstitutional under the First Amendment in the 2010 case called Citizens United v. Federal Election Commission.   It was a 5 to 4 decision, with all of the "liberals" of the time (Stevens, Ginsburg, Breyer, Sotomayor) in dissent.

Ever since the decision came out, overturning it has been a priority for the Left -- and for the "liberal" bloc of the Court.  Hillary Clinton promised in her campaign to introduce a constitutional amendment overturning Citizens United during her first ten days in office.  It was never clear that a constitutional amendment would actually be necessary, since all she really needed was one Supreme Court appointment to deep six the case for good.  In a widely-publicized interview that appeared in the New York Times on July 10, 2016, Justice Ginsburg was quoted as saying "I'd love to see Citizens United overturned."

Perhaps, given the huge fund-raising advantage that Hillary had over Donald Trump in the recent election, you are wondering why it is a priority for the Left to eliminate corporate financial involvement in elections.  It appears that the game is to silence all opposition -- or at least all well-funded opposition -- while assuming that the complete control of the press and of academia will enable the progressive message to get out in all circumstances.  But do they understand that all of the newspapers (New York Times, Washington Post) and broadcast media (ABC, NBC, CBS, CNN, MSNBC) are organized as corporations?  This could have become a huge issue if, for example, Merrick Garland had made it onto the Court.  Now, it will likely just go away.

Second Amendment/Heller.  Under a constitutional amendment that reads (in part) "the right of the people to keep and bear arms shall not be infringed," can a state or local government make it illegal in some or all circumstances for citizens to own firearms?  It is not surprising that views as to the answer to that question break down along ideological lines.  What is somewhat more surprising is that "liberal" legal academics and judges can convince themselves, in the face of the language of the Second Amendment, that severe restrictions that essentially eliminate legal private firearms possession are no problem.  The belief that the all-knowing bureaucrats can perfect the world if only given enough power is so strong that seemingly intelligent people are able to find ways to avoid remarkably clear and definitive language written into the Constitution itself.

The Heller case of 2008 was the one in which the Supreme Court decided that the right to "keep and bear arms" was a personal one that belonged to the people.  The vote was 5 to 4.  All of the "liberals" of the time (Stevens, Souter, Ginsburg, Breyer) voted as a bloc.  Merrick Garland, or any Hillary Clinton appointee, would immediately have overturned this one.  Now the precedent is safe for a while.

Commerce Clause/Lopez.  Perhaps the most famous quote from the Federalist Papers is that from Madison's #45: 

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.  

I won't delve here into the steps by which the federal government slipped the ties of its "enumerated powers," most notably Wickard v. Filburn of 1942.  But are there today any limits at all on federal powers?  The most relevant Supreme Court case is United States v. Lopez of 1995.  Again, it was a 5 to 4 decision, with all of the "liberals" of the time (Breyer, Stevens, Souter, Ginsburg) dissenting.

At issue in the case was the constitutionality of the federal "Gun Free Schools" act, by which Congress had purported to make possession of a firearm near a school into a federal crime.  Could there be any subject farther removed from the "few and defined" powers granted to Congress by the Constitution?  Lopez challenged whether Congress had authority to legislate in this area.  The majority of 5 held that it did not.  But Justice Breyer, in dissent, articulated a rationale under which the constitutional limits on Congressional powers become completely meaningless:

Could Congress rationally have found that "violent crime in school zones," through its effect on the "quality of education," significantly (or substantially) affects "interstate" or "foreign commerce"? 18 U. S. C. §§ 922(q)(1)(F), (G). As long as one views the commerce connection, not as a "technical legal conception," but as "a practical one," Swift & Co. v. United States, 196 U. S. 375, 398 (1905) (Holmes, J.), the answer to this question must be yes.

While they won't quite say so directly, it is absolutely clear that all Supreme Court justices of the liberal bloc will find a way, in any given case, to support the power of Congress to legislate under the Constitution, no matter how remote the subject at hand may be from the enumerated powers of Article I, Section 8.

So, if you were hoping for the achievement of new heights in perfect justice and fairness through more laws, rules and regulations, you are probably very disappointed that it was Donald Trump rather than Hillary Clinton who got to make this Supreme Court appointment.  If you like the Constitution as written, you probably like Gorsuch.