A conversation with Anita Hill

Supreme Court nominee Neil Gorsuch’s philosophy of constitutional originalism makes him likely to view protection of rights narrowly, Hill says

Professor Anita HillPhoto/Mike Lovett

On Feb. 1, President Donald Trump made one of the most-anticipated announcements of his new presidency when he named Neil M. Gorsuch, a judge on the United States Court of Appeals for the 10th Circuit in Denver, as his nominee for the Supreme Court seat vacated by the death of Justice Antonin Scalia a year ago. Senate Republicans did not hold hearings on former President Barack Obama’s pick for the seat, Judge Merrick Garland, whose nomination expired after languishing for 293 days – eclipsing the time it took Louis D. Brandeis to be confirmed.

With that backdrop, Gorsuch’s nomination is surrounded by questions of what the Senate Democrats may do – and what sort of justice he will be if his nomination is approved. University Professor Anita Hill, professor of social policy, law, and women’s, gender and sexuality studies, spoke with BrandeisNOW about the impact Gorsuch could have on the court and the country.

Judge Gorsuch has a lengthy judicial record from his years on the federal bench. What about that record stands out to you most in terms of how he is likely to rule on cases that come before him on the Supreme Court?

There is a group of appellate cases from 2009 to 2016, where Justice Gorsuch has been in the dissent in some really important decisions involving workers’ rights. One was a Department of Labor fine against a company whose failure to train a worker resulted in the worker’s death. He dissented in a case where the National Labor Relations Board awarded back wages because a company had underpaid the worker. He also dissented in a Title VII case, a sex discrimination case brought by a female UPS driver whose colleagues testified that she was treated differently than male peers.

What really stands out more than particular cases that Gorsuch has decided, though, is his philosophy, and I believe that’s why has been chosen. He espouses a philosophy of Constitutional originalism and he’s someone who says we must look at the text strictly as written. That originalist approach, which is both philosophical and methodological, will limit a lot of arguments in favor of constitutional protections for rights to privacy, and the often-complementary right not to experience discrimination. The approach could lead to the overturning of long accepted Supreme Court precedent, including in the area of immigration restrictions.

He’s gone even further on one particular doctrine than Scalia would have: the non-delegation doctrine. He has argued for application of that doctrine, which says in effect that Congress cannot delegate to agencies the implementation of statutes. Most jurists and policy makers agree that interpretation and implementation have to be done through agency regulations –it’s understood as part of the process.

We won’t likely see a hardline application of the doctrine.  But if Gorsuch can take the court in the direction of the non-delegation doctrine, agencies like OSHA [the Occupational Health and Safety Administration], which promulgates safety regulations for workers, and the Environmental Protection Agency could be significantly limited in enforcing a whole host of Congressional acts. It could jeopardize the ability of the Department of Education to enforce Title IX, which has implications for how colleges and universities handle sexual assault and harassment cases, as well as Title VI which protects against racial discrimination.

In confirmation hearings, Supreme Court nominees are typically circumspect about their views on highly-charged issues likely to come before the bench to avoid having to recuse themselves on such cases. Do you expect that to continue with the hearings on Gorsuch?

This is a new day and I think people are seeing the court in a very different way. Senators are going to have to ask different kinds of questions, not just doctrinal questions or hypothetical facts kind of questions, but questions about whether Gorsuch will contemplate the outcomes of the Court’s decisions. For example if the Affordable Care Act is repealed and there are challenges to the appeal, is he willing to take into account the billions of dollars that will be lost to the states [in Medicaid funding]? Is he willing to take into account projected loss of lives that will accrue – the fact that people will not be able to be covered for preexisting conditions? This will be an opportunity for the Senate to educate the public about the real consequences of Supreme Court decisions. Even though Gorsuch may not answer the questions, it’s important for the questions to be asked.  Supreme Court nomination hearings ought to inform the public about the nominee as well as the issues and direction of the court, that’s why they are open and public.

Judge Gorsuch clerked for Justice Anthony M. Kennedy, setting up the somewhat unusual situation of a justice serving with another justice for whom he clerked. Justice Kennedy has often been the court’s swing vote, having aligned himself with both the liberal and conservative wings of the court. How do you think Kennedy and Gorsuch's relationship could affect the dynamics of the court and its decision-making?

When Justice Elena Kagan went before the Senate judiciary committee, she talked about her relationship with [late Justice] Thurgood Marshall. What I know from people who have clerked for the court is that those clerkship years are very influential, and there’s a reverence former clerks have for the justices they clerked for. That background makes for an important dynamic when the mentee becomes a colleague.

What people are not talking so much about is the fact that Gorsuch also clerked for [late Justice] Byron White. He was known as a moderate conservative but he was also kind of an enigma. He was known for his dissents in a court that was often a united court, and he held a limited view of privacy rights. White dissented in Roe v. Wade and in Miranda vs. Arizona, and he wrote the court’s majority opinion in Bowers v. Hardwick, which criminalized homosexual sex in 1986, denying defendants a protective right of privacy. In 2004, that case was overturned by a case called Lawrence v. Texas – and it was Justice Kennedy who wrote the opinion.

We’re going to see many cases coming before the court in which the doctrine of right to privacy is going to be challenged. Will Gorsuch be informed by the decisions of his mentor Justice White, or will he be listening to his mentor now current colleague Justice Kennedy? We don’t know, but the choice has real life consequences today especially in transgender rights claims.  

Many legal observers say we can expect Judge Gorsuch to be similar in both style and substance to his predecessor, Justice Scalia. If this is true, do you think the dynamics of the court would change that much with his confirmation?

In terms of substance he probably is like Scalia – he’s a very good communicator, he has really put a lot of thought into what his jurisprudence is and how he advocates for his approach to the law. In other ways they may be very dissimilar. I understand he is less acerbic than Scalia and he may be able to sell his point of view with the court or even the American public better than Scalia. I think it will matter how he messages his view of the law, and I do think that’s something the president was probably quite cognizant of – who is best equipped to carry the conservative jurisprudential plan of action into the future. 

Categories: General, Humanities and Social Sciences

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