Questions for Judge Gorsuch

Today is the last day of confirmation hearings for Neil Gorsuch, Donald Trump’s nominee to replace Justice Antonin Scalia on the Supreme Court. The following are the questions I would ask Judge Gorsuch if I were at the hearings.


Judge Gorsuch, in 2005, you wrote 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 on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.” In this article, you argued persuasively that “the ballot box and elected branches are generally the appropriate engines of social reform.” I strongly support this principle, and I would like to know if your commitment to it extends to cases where conservatives, not liberals, have turned to the courts to achieve their policy goals.

In 2012, and again in 2015, conservatives brought cases to the Supreme Court seeking to undo key provisions the Affordable Care Act, which had been passed into law by a democratically-controlled Congress and a Democratic president. In both of these cases, Chief Justice John Roberts, a conservative who likely had serious concerns about the wisdom of the law, went to great lengths to respect and preserve the work of the legislature. For example, in his majority opinion in the 2012 case, he argued a) that the law’s shared responsibility payment was not a tax from the standpoint of the Anti-Injunction Act, b) that this distinction did not preclude the payment from being considered a tax for constitutional purposes, and c) that while the most straightforward reading of the law was that it commanded individuals to purchase insurance, it was reasonable to treat the law’s shared responsibility payment as a tax.

You are, of course, familiar with the two Obamacare cases, and you no doubt have an opinion on them. And given that the cases have already been decided and that the Affordable Care Act is likely to be repealed soon, nothing should prevent you from sharing your opinion on the cases and answering the following  questions:

First, in the two Obamacare cases, do you believe that Chief Justice Roberts was correct to consider and adopt alternative readings of the Affordable Care Act in order to preserve the work of the legislature?

Second, has there ever been a case in which you decided against one or more conservatives who were seeking to achieve a social policy objective in the courts?

And finally, if the answer to both of the previous questions is no, how can we be confident that you are truly committed to the principle that social policy objectives are generally best achieved at the ballot box and through elected representatives rather than through the courts?


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