This isn’t really an opinion, but more like a report on what I just learned.
In reading about Gorsuch I learned he was a ‘literalist’, which is a conservative way of being a judge. It means a judge interprets the law based on the words in the law and nothing else. That is as opposed to a judge who might try to understand the lawmaker’s intent behind a law.
Backing up, what does the Supreme Court, and other Federal courts do? They hear cases that challenge laws, difficult situations that require the court to interpret whether or not a particular law applies or not.
So how does a judge decide? Well this gets down to whether you believe a judge should enforce the letter of the law or the spirit of the law.
A literalist judge will simply look at the words and reason from there. The other approach is to look for evidence of what the lawmakers intended with the law, or maybe what the law, de facto, accomplishes, and use that to shape an opinion.
I’m sure this issue leads to some very deep intellectual discussions of the best way to judge. Clearly there are many problems with trying to reason the intent of, say the Founding Fathers when writing the Second Ammendment.
A literalist judiciary puts the onus on the lawmakers to write laws that clearly express their intent. This seems like a good thing. Maybe.
NOTE WELL that in either case, the judge’s own personal opinion on the matter should have no bearing whatsoever. The personal opinions of the lawmakers, yes, definitely, should be encoded in the law. But the judges can only interpret that law.
So how does this apply to the immigration ban?
Well it appears there are two legal challenges to it. One is based on, I believe, a 1968 law that prohibits discrimintation based on national origins. On the surface, it seems clearly in play here, but there are difficulties with it’s interpretation that I don’t want to discuss here, because I don’t understand them.
And my point is more about literalist judges and what that means for us as a people. And that gets to the second challenge.
The second legal challenge is a constitutional one. The Constitution bans any discrimination based on religion.
A ban against Muslim immigrants is clearly unconstitutional.
So what about this law? Do you see where this is going?
If you take the law solely by it’s wording, if you make a judgement based on the words alone, well the law does not discriminate against Muslims, only on people from certain countries.
What if a judge considers the intent behind the law? Well in that case Trump has many many instances of campaign rhetoric where he promised to ban Muslims from entering the country once he was elected. Clearly his intent is to ban Muslims.
How can lawmakers use this to weasel around? I’ve read that Trump’s team met with legal advisors to try to figure out how to ban Muslims legally.
The country of origin ban is what they came up with.
Whether it gets by the Supreme Court depends on whether the courts look at the words of the immigration ban, or the intent behind it. Literalist judges, or not. People are forecasting a 4-4 split if it goes to the Supreme Court.
(NOTE WELL AGAIN — in either case, for any of the 8 justices, it doesn’t matter what their personal opinion on immigration is. They are simply deciding if the law violates the Constitution or not. If it is a ban against a religious group, or not. (And I believe the Supreme Court justices are all very honorable in this regard, they do do their jobs as they see it should be done.))
Gorsuch is a literalist judge. If confirmed, it will be easier for Congress and the President to draft laws and directives that are legally worded but whose intent might be very different from those words.
In other words, it might encourage Congress and the President to pass laws, issue directives that, rather than clearly stating their intent, are crafted to obfuscate it.
–Dennis
