Posted by Curt on 4 October, 2017 at 10:50 am. 3 comments already!


Ann Althouse:

Yeesh! That was intense!

Now, what was that all about? As Toobin explains it, in yesterday’s oral argument in Gill v. Whitford, the newcomer, Neil Gorsuch, didn’t behave with sufficient respect for seniority.

The argument had gone on for nearly an hour when Gorsuch began a question as follows: “Maybe we can just for a second talk about the arcane matter of the Constitution.” There was a rich subtext to this query. Originalists and textualists such as Gorsuch, and his predecessor on the Court, Antonin Scalia, often criticize their colleagues for inventing rights that are not found in the nation’s founding document. Gorsuch’s statement that the Court should spare “a second” for the “arcane” subject of the document was thus a slap at his ideological adversaries….

So Gorsuch slapped first.

…of course, they, too, believe that they are interpreting the Constitution, but, in Gorsuch’s view, only he cares about the document itself.

The Gorsuch usage of the word “Constitution” to mean, specifically, the original text harks back to the distinction between “Constitution” and “constitutional law” famously propounded by Reagan’s Attorney General Edwin Meese in 1985. Gorsuch was arch and got off a bon mot — “Maybe we can just for a second talk about the arcane matter of the Constitution” — and I’m sure that was irritating to the Justices who want to rest on constitutional law — that is, the court opinions that have over many years supervened the constitutional text with the gloss on the text written by the judges.

Toobin says that “Gorsuch went on to give his colleagues a civics lecture about the text of the Constitution,” but all that means is that he proceeded to demand that the lawyer pushing the Court to strike down the work of the state legislature identify the clause of the Constitution that authorizes the Court to act:

“And where exactly do we get authority to revise state legislative lines? When the Constitution authorizes the federal government to step in on state legislative matters, it’s pretty clear—if you look at the Fifteenth Amendment, you look at the Nineteenth Amendment, the Twenty-sixth Amendment, and even the Fourteenth Amendment, Section 2.” In other words, Gorsuch was saying, why should the Court involve itself in the subject of redistricting at all—didn’t the Constitution fail to give the Court the authority to do so?

Toobin calls that a “civics lecture”? I think what he means is that the demand for a text is so basic that to talk about it is to sound as though we are back in high school, and that’s either an insult to the old folks on the Court who should be presumed to already know such things or it’s an implicit criticism of them for failing to live up to the standards that of course Gorsuch knows they know.

Here‘s the transcript of the oral argument, where you can see that Gorsuch followed the “civics lecture” with one more question: “Aren’t those all textual indications in the Constitution itself that maybe we ought to be cautious about stepping in here?”

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