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Confirming once again, as Americans witness the increasing lawlessness around them, that the 2nd Amendment isn't the anachronism that its antagonists believe:

 

 

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July 03, 2020 • 11:23 AM

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Supreme Court: Gorsuch May Go Beyond Scalia Print
By Timothy H. Lee
Thursday, February 02 2017
Trump didn't merely nominate someone "in the mold of" the late Justice Scalia with 10th Circuit Court of Appeals Judge Neil Gorsuch. Believe it or not, he may have nominated someone who will exceed Scalia himself.

During last year's presidential campaign, Donald Trump assured wary voters that, "I am looking to appoint judges very much in the mold of Justice Scalia." 

From that point forward, the question of whether the distinctively mercurial Trump could be trusted to adhere to his promise remained a matter of frequent debate. 

This week, Trump resolved that question in the affirmative, vindicating those who chose to support him despite whatever other misgivings they maintained. 

In fact, Trump didn't merely nominate someone "in the mold of" the late Justice Scalia with 10th Circuit Court of Appeals Judge Neil Gorsuch.  Believe it or not, he may have nominated someone who will exceed Scalia himself. 

To be sure, Judge Gorsuch's record offers a reassuring parallel to Scalia's jurisprudence, with few variances distinguishing them. 

In terms of overarching judicial philosophy, Judge Gorsuch shares Justice Scalia's emphasis on fidelity to the text of a law or constitutional provision in question, rather than any particular political result he might otherwise prefer.  "Any judge who likes every result he reaches," Gorsuch observed, "is very likely a bad judge, reaching for results he prefers rather than those the law compels."  In other words, his philosophical North Star is that the judge's role is to interpret and apply laws as objectively as possible, rather than impose his own subjective preferences.  That matches the central philosophy of Scalia, a man who politically opposed such things as flag-burning yet acknowledged as a matter of law that it constituted free expression protected by the First Amendment. 

Applying that strict constructionist judicial philosophy, Judge Gorsuch's record of decisions will reassure admirers of Scalia. 

Perhaps most visibly, Gorsuch participated in two controversial ObamaCare cases that ultimately reached the Supreme Court, Hobby Lobby Stores v. Sebilius and Little Sisters of the Poor Home for the Aged v. Burwell.  In both cases, he held that ObamaCare's mandates excessively burdened the First Amendment and statutory religious liberties of private citizens.  That refusal to defer to the Obama Administration and the Pelosi-Reid Congress befits Justice Scalia's seat. 

Judge Gorsuch's record also parallels Scalia's on matters of federalism.  Specifically, courts have too often used the so-called "dormant commerce clause" to suffocate states' ability to serve as individual "laboratories of democracy."  Without delving too deeply into the legal weeds, the Constitution's interstate commerce clause obviously grants supremacy to federal laws on matters substantially affecting interstate commerce.  The "dormant commerce clause," however, is a judicial invention used to preempt states' latitude even where the federal government has chosen not to govern.  In other words, it's a method of expanding federal power at the expense of the states. 

Disparaging that concept in one 2015 opinion, Justice Scalia wrote that, "The fundamental problem with our negative Commerce Clause Cases is that the Constitution does not contain a negative Commerce Clause."  Judge Gorsuch echoed Scalia's opinion in a case involving state-level environmental regulations, opining that the "dormant commerce clause" concept is "absent from the Constitution's text and incompatible with its structure."  As the federal government continues to encroach upon state governance, this will likely prove an increasingly important field of Supreme Court concern. 

In the criminal law realm, as one additional example, Judge Gorsuch has shared Justice Scalia's impatience with convicts' attempts to circumvent the plain meaning of the laws under which they were prosecuted and sentenced, particularly capital statutes.  Like Scalia, however, Gorsuch has also ruled against the government in cases involving vague criminal statutes that provided insufficient notice to citizens what behaviors would or would not place them in criminal jeopardy.  In this era of overcriminalization and proliferation of laws that no longer even require criminal intent to trigger prosecution, this is an area of law where even the most hardened anti-crime hawks acknowledge the need for judicial vigilance. 

In at least one increasingly important area of law, however, Judge Gorsuch may actually advance beyond Justice Scalia. 

Namely, Justice Scalia favored broader judicial deference to federal administrative agencies' attempts to interpret and exploit ambiguous laws passed by Congress, known as "Chevron deference" after a 1980s Supreme Court decision.  Whereas Scalia repeatedly defended that deference to agencies like the Federal Communications Commission (FCC) and Environmental Protection Agency (EPA) staffed by unelected and unaccountable bureaucrats, Judge Gorsuch believes that it allows administrative agencies to improperly expand their own power to interpret federal laws at the expense of the judicial branch. 

To his credit, Justice Scalia appeared to recognize the danger of Chevron deference toward the end of his career.  But it's a tribute to Judge Gorsuch that he was ahead of even Scalia's curve in that increasingly important area of law. 

Accordingly, Trump may have just managed to achieve the unimaginable:  finding a nominee who, at just 49 years old and presumably with decades to serve, might actually surpass the great Justice Scalia. 

Question of the Week   
John Adams, then-delegate to the Continental Congress and signatory to the Declaration of Independence, said this “… will be the most memorable in the history of America …” with regard to which historic day?
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"Let's not forget why we celebrate 4th of July, it is the day Will Smith saved us from the aliens."…[more]
 
 
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