United States President Donald J. Trump nominated Judge Neil M. Gorsuch to fill an 11-month-old vacancy on the U.S. Supreme Court on Tuesday night. Like the late Supreme Court Justice Antonin Scalia, Judge Gorsuch is known as a textualist and originalist, someone who will interpret the U.S. Constitution as the Founding Fathers intended.
During his speech introducing Judge Gorsuch, President Trump said:
When Justice Scalia passed away suddenly last February, I made a promise to the American people: If I were elected president, I would find the very best judge in the country for the Supreme Court. I promised to select someone who respects our laws and is representative of our Constitution and who loves our Constitution and someone who will interpret them as written.
Shortly after Justice Scalia’s death last February, Judge Gorsuch praised Scalia’s legacy in a speech highlighting Scalia’s understanding of the distinction between judge and legislator:
But tonight I want to touch on a more thematic point and suggest that perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.
To President Trump’s credit, Judge Gorsuch is probably the best person he could have picked to fill the vacant seat on the Supreme Court. There aren’t a lot of constitutional originalists left in America, so it is rare to find a man willing to put the rule of law above his personal desires. For the past eight years, there has been widespread concern that President Obama would turn the nine-member Supreme Court into a transformative institution by appointing activist judges dedicated to legislating from the bench. If the Senate confirms Judge Gorsuch, it looks like he will be able to restore the status quo that existed before Justice Scalia’s death.
Yet, even Justice Scalia mostly fought a losing battle over the past three decades to rein in a Supreme Court that had already descended into judicial activism. Scalia wrote judicial dissents against the constitutionality of federally mandated health care, federally mandated legalization of homosexual “marriages,” and federally mandated legalization of abortion. Yet progressive justices overruled him in each case. Even if Gorsuch is an ideological clone of Scalia, his appointment will not halt the direction of the court.
Thus, the real test for the future of the Supreme Court will likely come after Justice Anthony Kennedy or Justice Ruth Bader Ginsburg retires.
If President Trump and a Republican Senate are able to appoint yet another constitutional originalist to the bench, the court would be in a position to at least start trying to repair much of the damage done to America’s legal system over the past half century.
For this effort to succeed, however, it will take more than just one or two more law-abiding justices. It would require nothing less than the American people rallying around principles of morality and the rule of law.
The U.S. Constitution was designed to prevent a tyrant or a small minority from hijacking the government. If the public at large stops loving the principles of freedom enshrined in the Constitution, however, a piece of parchment and a principled judge has little power to stop them from transforming society.
Former U.S. President John Adams explained this point in a letter to officers of the First Brigade of the Third Division of the Militia of Massachusetts in 1798: “[W]e have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge or gallantry would break the strongest cords of our Constitution as a whale goes through a net.”
Today, even as the Trump administration is trying to appoint an originalist to the Supreme Court, society is growing more immoral. According to a 2015 Gallup survey, 45 percent of Americans support abortion, and 63 percent of Americans support homosexual relationships. Imagine, then, the full-throated outcry in America’s cities if a group of constitutionally originalist Supreme Court justices made a ruling based on the undeniable fact that the federal government doesn’t have the constitutional authority to require states to legalize abortion or homosexual weddings.
Already, there are over 360 jurisdictions in the United States—entire counties, cities and municipalities—that have enacted “sanctuary” laws that forbid local enforcement of federal immigration laws. In essence, this is an attempt by American cities to circumvent the Supreme Court as the main arbitrator of the law of the land. While President Trump has issued an executive order calling for “sanctuary cities” to comply with federal immigration law or have their federal funding cut, mayors from New York, Los Angeles, Chicago and many smaller cities have vowed to defy the President’s order.
Could America soon see similar acts of civil disobedience over other issues, such as President Trump’s promised overturn of the Roe vs. Wade Case that made abortion a federal right? Would the people in a state where abortion had suddenly become illegal comply with that law?
Even before Mr. Trump took office, political commentator Victor David Hanson compared “sanctuary cities” to the Confederate secessionist movement of 1861:
In the 19th century, the Supreme Court issued a number of rulings prohibiting particular states from ignoring federal laws—from unpopular tax policies to the establishment of Native American reservations.
The most prominent nullificationist was Sen. John C. Calhoun, a South Carolina states-rights advocate and the spiritual godfather of sanctuary cities. Calhoun declared, for example, that federal tariffs should not apply to his state.
Apparently, sanctuary cities do not understand the illiberal pedigree of federal nullification, which was at the heart of the Confederate secessionist movement of 1861. In the 1960s, segregationists declared that Supreme Court decisions and integration laws did not apply to their states. In some states, local law enforcement refused to cooperate with federal authorities to integrate schools.
What would San Franciscans do if conservative counties and towns followed their lead? Perhaps a rural Wyoming sheriff can now look the other way when he spots a cattleman shooting a federally protected grizzly bear or predatory timber wolf—or at least shield the cattleman from federal officials. Should public schools in Provo, Utah, start the day with school-wide prayers?
If the Democratic Party mayors of America’s largest cities are willing to openly defy the law and the president, it is likely that they will defy the rulings of a constitutional originalist Supreme Court justice as well. Therefore, while Judge Gorsuch looks like a law-abiding man, he won’t make much of a difference unless the the hearts and attitudes of the American people change.
As conservative commentator Dennis Prager recently wrote:
It is time for our society to acknowledge a sad truth: America is currently fighting its second Civil War.
In fact, with the obvious and enormous exception of attitudes toward slavery, Americans are more divided morally, ideologically and politically today than they were during the Civil War. For that reason, just as the Great War came to be known as World War i once there was World War ii, the Civil War will become known as the First Civil War when more Americans come to regard the current battle as the Second Civil War.
Unlike the First Civil War, America’s Second Civil War has thus far been non-violent (except for some incidences of left-wing violence, such as riots, the illegal occupation of state capitols, the taking over of college presidents’ offices, etc). Yet this is prophesied to change if the American people don’t turn back to God.
“Many Americans are troubled by the divisions and hatreds being expressed right now,” wrote Trumpet editor in chief Gerald Flurry in his January article “America’s Coming Civil War.” “But they need to be a lot more concerned than they are! The problems are going to get worse and worse until people get the message and they learn why these disasters are happening.”
The divisions within America point to a soon-coming major clash. For information on what the Bible has to say about this, read “America’s Coming Civil War.”