If Confirmed, Would Neil Gorsuch Rule Contrary To Trump's Policies?

Legal expert Jeffrey Rosen says of the Supreme Court nominee: "If he thought that individual liberty was threatened by presidential or congressional overreaching, then he would step in."

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. We're going to talk about President Trump's Supreme Court nominee, Judge Neil Gorsuch. If confirmed, he would replace Justice Scalia who died last February. In March, President Obama nominated Judge Merrick Garland to replace Scalia, but Republicans refused to consider the nomination, saying that it was an election year and the next president should be allowed to fill the vacancy.

My guest is Jeffrey Rosen, the president of the National Constitution Center, which was established by Congress to disseminate information about the Constitution on a nonpartisan basis. Rosen is a professor at the George Washington University Law School. He also writes about the law for The Atlantic, is the former legal editor of The New Republic and has written books about the Supreme Court and the court system. His latest book is about Justice Louis Brandeis.

Jeffrey Rosen, welcome to FRESH AIR. Let's start with Neil Gorsuch. How would you summarize Neil Gorsuch's judicial philosophy?

JEFFREY ROSEN: Neil Gorsuch calls himself an originalist and a textualist. He defines that as a judge who separates his political from his constitutional preferences. But Judge Gorsuch is also more of a Jeffersonian than a Hamiltonian. He believes in strictly construing limits on federal and presidential power in order to protect liberty.

Justice Scalia was more of a Hamiltonian. He believed in a broad national government and judicial deference to its power to make regulations. So for those reasons, Judge Gorsuch is more likely than Justice Scalia would have been to enforce limitations on the regulatory state, to require that executive agencies go through proper procedures before passing regulations, and he might even be more likely than Justice Scalia would have been to question executive orders issued by President Trump himself.

GROSS: So you think he'll be anti-regulation?

ROSEN: I do. He said that he thinks that the regulatory state is a behemoth that has to be questioned. And he wants to re-examine the legal underpinnings of it, which have generally required judges to defer to agency interpretations of statutes as long as they're reasonable.

GROSS: So that means - does that include, like, environmental protection regulations, corporate limitations?

ROSEN: It could, indeed. And for that reason, progressives have expressed concern that he might dismantle the post-New Deal regulatory state. The argument on the other side is, first, that he wants merely to follow proper procedures not to undo the agencies themselves and, second, that to the degree that he's going to be reviewing orders issued by Trump agencies, his skepticism of regulation might lead to results that liberals like.

GROSS: And you think he'd be for limiting the powers of the presidency?

ROSEN: He would insist that in issuing regulations, the president follow congressional intent - that the president not be allowed to freelance and repeal environmental regulations, for example, that Congress has explicitly authorized or called for. I think he would be quite willing to impose limits on the powers of the presidency or Congress if he thought that they exceeded their constitutionally assigned bounds.

GROSS: What do you think of some of Gorsuch's most revealing decisions that help you understand how he might vote on cases that are making their way to the Supreme Court in the near future?

ROSEN: Some of Gorsuch's most revealing decisions involve the regulatory state. And there's a case called Gutierrez-Brizuela against Lynch in 2016, where Gorsuch writes that cases like this Chevron decision have permitted executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that's difficult to square with the Constitution of our framers' design. In other words, he's saying that Congress has given too much discretion to the executive, and the courts ought to rein it back.

But there are other really interesting decisions involving criminal law that are revealing because they suggest that Gorsuch is serious about separating his policy views from his constitutional views. He's been quite a vigorous enforcer of the Fourth Amendment's protection against unreasonable searches and seizures and has actually sided with suspected child pornographers in two cases, which is, you know, showing the rigor of his devotion to these principles on the grounds that proper procedures weren't followed.

GROSS: I've read that he is very socially conservative judicially.

ROSEN: I have read that and don't know it. I do know Gorsuch a bit. We...

GROSS: You've met him?

ROSEN: We clerked together on the...

GROSS: Oh, you're kidding, really? Oh.

ROSEN: Yeah, on the U.S. Court of Appeals for the D.C. Circuit. He was a clerk for David Sentelle, and I was a clerk for Abner Mikva. And I liked him tremendously. I admired him. He's just a prince of a guy in terms of his collegiality and warmth and friendliness and has a moderate manner and a kindliness that - and I never detected in our, you know, brief encounters then and since then over the years, any kind of crusading, social conservative vibe. But the truth is he just hasn't said much publicly and seems to have kept his views on that square to himself.

GROSS: I just kind of assume that he's probably anti-abortion, you know, pro-life and socially conservative because he was vetted. He was on the list. I mean, my understanding is he was on the list that was basically presented to Trump when Trump was a candidate and said like, these are the guys that we would like to see, you know, on the bench. Choose from this list. And candidate Trump presented that list as I - I'm going to choose from this list. So since the list was so well vetted and since abortion is really high on the list of issues that people vetting it are interested in, do you think is fair to assume that therefore (laughter) - therefore he's passed some kind of litmus test?

ROSEN: There's no reason to doubt that he's conservative. And The New York Times ran a survey recently that placed Gorsuch to the right of Justice Scalia and just to the left of Justice Thomas in terms of the predicted conservative outcomes that he would reach. It's possible, of course, to be personally pro-life but to believe that Roe v. Wade should be affirmed because of presidential grounds or to be personally pro-choice and to think that Roe v. Wade was wrongly decided.

And Gorsuch is definitely very keen on separating his policy from his political views. So I don't think he'd vote to overturn Roe just because he disagreed with it personally, unless he thought it was constitutionally wrong. But there's certainly no special reason for hope that he wouldn't take a hard look at Roe in light of both his natural law writings and his strict constructionist methodology.

GROSS: One of the decisions that Neil Gorsuch made as a judge was in the Hobby Lobby case. And this was the case saying, our company can't pay for insurance that covers contraception because the contraception part goes against the religious principles of this company. So this was like an anti-Obamacare case. So what does it tell you? What can you deduce from that about Judge Gorsuch?

ROSEN: That he cares a lot about religious liberty. He wrote that decision in the Hobby Lobby case. He also wrote a decision in the Little Sisters of the Poor case that the Supreme Court eventually took and dodged by sending it back and saying come up with some way of allowing these sisters not to have to sign a form in order to have their employees get contraception coverage.

This theme of religious liberty runs throughout Judge Gorsuch's opinions. And sometimes he's invoked it to side with less sympathetic defendants, like prisoners and so forth. But the idea of vigorously enforcing Free Exercise rights is not limited to social conservatives. Liberal justices have sometimes embraced it, too, like Justice Elena Kagan. But it's certainly something he cares a lot about.

GROSS: So in the Hobby Lobby case, you could argue that the religious freedom of the people who own the company is superseding the religious freedom of employees who don't share those religious views and, therefore, won't be allowed to have their birth control paid for through their insurance. So what does that tell you about his view of what religious liberty is, and who gets it and who doesn't?

ROSEN: It all depends on how you define the corporation, how broadly these corporate rights apply and whether they sweep up unconsenting shareholders. Judge Gorsuch's opinion in Hobby Lobby was arguably more tightly constructed than even the one that the Supreme Court ultimately embraced. So I'm sure he'd struggle with that conflict that you identified, but how he'd resolve that in really - future tough cases remains to be seen.

GROSS: Can you deduce anything about religious freedom for Muslims based on Judge Gorsuch's background and his decision on the Hobby Lobby case?

ROSEN: Yes. You know, I think if an order were to explicitly discriminate against the individual free exercise of religion by Muslims, I bet that Judge Gorsuch would be quick to strike it down. He really cares about the liberty of dissenting religions. There's no reason at all to think that he would discriminate among religions. That's not the case with this immigration order where the claims that it was directed against Muslims don't appear in the text of the law itself but are statements that the president made outside the courtroom.

But I bet that if religious discrimination against Muslims became inscribed into law, Judge Gorsuch would object.

GROSS: If you're just joining us, my guest is Jeffrey Rosen. He's president of the National Constitution Center. He's a legal journalist who writes for The Atlantic and is former legal editor of The New Republic. We're going to take a short break and then talk some more. This is FRESH AIR.

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GROSS: This is FRESH AIR, and if you're just joining us, my guest is Jeffrey Rosen, the president of the National Constitution Center. He's also a legal journalist who writes for The Atlantic and is the former legal editor of The New Republic. He's written books about the Supreme Court and the federal court system. How would you compare Neil Gorsuch to the other judges who were on the list of potential nominees?

ROSEN: Judge Hardiman, who is our candidate here in the 3rd Circuit, obviously has a different background - Georgetown rather than Harvard Law, less Washington-elite and more hardscrabble. And his opinions have more of a pragmatism to them. And the people who run the statistics concluded that Hardiman was less like Scalia than Gorsuch was. In other words, Gorsuch was more likely to vote like Scalia than Hardiman. But there's a really other important difference that Gorsuch has unlike any of the other candidates on the list.

And that's the fact that he knows Justice Kennedy so well and clerked for Justice Kennedy. And the entire game on the Supreme Court right now is winning Justice Kennedy's vote. And right now, Kennedy is quite close to the liberal Justices Kagan and Breyer. And he is willing to vote with liberals in important cases. The fear of progressives is that Gorsuch has Kennedy's trust to such a degree that he could really successfully bring him over to the conservative side even more frequently.

And then the other concern that's...

GROSS: Wait - that Gorsuch could bring Kennedy to the conservative side?

ROSEN: Yes, absolutely. In cases that are close and Kennedy's unsure, Kennedy might trust Gorsuch's instincts. And Scalia famously, you know, criticized Kennedy and ridiculed his opinions and talked about opinions he really cared about as the sweet mystery of life passage and so forth. Gorsuch is the opposite. I mean, he's so much more collegial, and Kennedy trusts him. So that could dramatically change the internal dynamics of the court right away and then more broadly.

And this has now been widely speculated about - there were signs that Justice Kennedy was thinking of retiring earlier in the year when he didn't hire clerks or schedule a clerks reunion. He then walked back on that. But if Kennedy believed that Trump will appoint more judges like Gorsuch, he might be more willing to retire because he would feel that his legacy would be preserved.

GROSS: And Kennedy might be on the verge of retiring because he's 81 now.

ROSEN: He is and he wants to ensure that his legacy is secure. And as long as he felt that it wouldn't be dismantled by future judges, then he might be inclined to retire. But, of course, the counter argument is that there's only one Gorsuch, and a replacement for Kennedy might look very different. Another name on the list was Judge Pryor from Alabama, who's much more of a social conservative, openly less of a legal textualist and strict constructionist and could be less sympathetic to Kennedy's opinions protecting equality and dignity.

GROSS: It seems like the Democrats are in kind of a difficult position right now. You know, they're very angry about how Merrick Garland never got a vote. He was just, like, never even brought to committee. President Obama was not allowed to appoint a justice because the Republicans said it was in the middle of an election year and we should wait to see who's elected and let that President decide. So there's that anger and then, you know, he's more conservative than Democrats would like to see.

On the other hand, if Democrats filibustered him, they might be presented with somebody who is even more conservative and less to their liking. Would you describe the predicament you see Democrats as being in now?

ROSEN: You described the predicament very well. They're in a real pickle. The appointment of Gorsuch itself is an act of judicial jujitsu in the sense that he's so well-qualified that he's hard to oppose. If Democrats filibuster him, you know, they might get someone worse. More likely, the Republicans will just blow up the filibuster and there'll be no more filibuster. So then the strategic question is do they wait, allow the 10 Democrats who are up for re-elections in red states or some proportion of them to vote for Gorsuch and then filibuster the next time when it really matters, if Kennedy were to retire?

That's the seat with real consequences. Then Democrats could try to argue, look, we respected the filibuster, it has some kind of weight. Now, probably Republicans would blow up this filibuster the second time. So waiting might not help much either. But I guess if you were being tactical, you know, you might say let's hold your fire for the second seat.

GROSS: In other words, wait until the next judge and filibuster them?

ROSEN: Yes, if you're, you know - just in the hope that the filibuster might hold the second time when it really matters.

GROSS: It seems the days when people were saying there shouldn't be a litmus test for who gets nominated for a Supreme Court judge are over. I don't think people even pay lip service to that anymore. I think it's just, like, understood there's going to be a litmus test. Do you agree?

ROSEN: Yes, but it's almost gone beyond litmus test. I mean, it's no - it's not a single issue like Roe. Democrats and Republicans want judges who will reliably side with them on the cases that matter. And what's so distressing is that even the most respected progressive and conservative judges - and I think you have to say Merrick Garland and Neil Gorsuch are the best-qualified legal intellectuals for their side in the country. You're basically getting the cream of the crop.

GROSS: For their side. Yeah.

ROSEN: For their side. Both would have voted reliably with their sides in the 5-4 cases that matter. And that's just a sign of the polarization of the court and the fact that, despite the best efforts of Chief Justice Roberts - and I really respect his efforts to try to overcome this polarization - it's R's against D's in the big cases that everyone is watching. And there doesn't seem to be much movement there. So in that sense, we shouldn't be surprised to get a really conservative judge from Republicans and a reliable progressive from liberals.

GROSS: And there's so much at stake politically now, since there are so many older justices who may be on the verge of retiring.

ROSEN: There is so much at stake politically. And the court is poised at the razor's edge. And the next seat could irrevocably change it for a generation. And that's why the election was so important. You know, the difference between a progressive court for 40 years and a conservative court for 40 years is tremendous. And then we see the stakes with all of the constitutional challenges that are rising in response to actions by the president and Congress. It's understandable why people are paying very close attention to these nominations, as they should.

GROSS: Getting back to the Supreme Court, do you have any sense of Chief Justice John Roberts' take on President Trump and how he's likely to vote on any constitutional questions? I guess it's a case-by-case thing, but sometimes you can have a sense of where somebody stands.

ROSEN: I have no knowledge. He hasn't said anything. I don't have any inside scoop. But my sense - my instinct from having watched Roberts - this is not a fan of the kind of populism represented by President Trump. And if John Roberts believed that President Trump were exceeding his executive authority or ignoring the will of Congress or threatening the First Amendment, for example, I'm pretty confident that he would not only vote against President Trump but could lead a court and create a bipartisan consensus against Trump.

A clear threat to the First Amendment, for example - you know, if the tweet were to become law, and citizens were - and people were to be deprived of their citizenship because they burned the American flag - clearly unconstitutional. I think a unanimous court would strike it down. And if things really got dramatic in terms of breaking constitutional norms that have been in place for a long time, I believe that the conservative as well as the liberal justices on the court would be an effective backstop.

GROSS: What leads you to believe that?

ROSEN: Because they take very seriously this notion of constitutional, Madisonian restraints on the president and Congress. All of these scruples that libertarian conservatives have long embraced and progressives have been less interested in since Teddy Roosevelt and the referendum and the progressive era and the imperial presidency, these are things that the conservative justices really believe in. And when they say I want to separate my political from my constitutional principles, sure, you can look at the record of votes and say they happen to coincide in lots of cases.

But when it comes to structural clashes between the branches of government, I think that the conservative justices led by John Roberts really believe what they say. And that's why Gorsuch's repeated statements - I mean, this isn't just a passing interest - but he has repeatedly said that it's important to keep the president and Congress within their constitutional limits in order to preserve individual liberty. We have to assume that he really means that. And if he thought that individual liberty were threatened by presidential or congressional overreaching, then he would step in.

GROSS: My guest is (inaudible) Rosen, the president of the National Constitution Center in Philadelphia. We'll talk more after a break.

Also, we'll listen back to an interview with the British actor John Hurt, who died last week. And David Edelstein will review the Oscar-nominated Iranian film "The Salesman." The director won't be at the Oscar ceremony because of the president's travel ban. I'm Terry Gross, and this is FRESH AIR.

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GROSS: This is FRESH AIR. I'm Terry Gross, back with legal journalist Jeffrey Rosen, who is also the president of the National Constitution Center in Philadelphia. He writes about legal issues for The Atlantic, is the former legal affairs editor for The New Republic and has written books about the Supreme Court and the court system. This morning, the Senate Judiciary Committee approved the nomination of Senator Jeff Sessions for attorney general. The vote was along party lines - 11 Republicans voted for him, 9 Democrats against. Now the nomination will go before the full Senate.

So let's talk about the job of attorney general. Would you explain what the job actually is?

ROSEN: The job is hugely important 'cause it supervises all of these law enforcement agencies like the FBI, the Drug Enforcement Agency, the Immigration Courts. And the attorney general also gets to decide how to devote resources to law enforcement or not. So the DOJ is responsible for defending the government and surveillance disputes and decides whether or not to give law enforcement access to surveillance data in cases like the Apple case, it enforces the Voting Rights Act and can decide, especially in light of the curtailment of Voting Rights' power by recent Supreme Court decisions, how vigorously to protect voting rights, polices police misconduct and enforces civil rights laws protecting undocumented immigrants and transgender students.

It's responsible for anti-trust enforcement, which is a huge issue where President Trump has questioned some proposed recent mergers such as between AT&T and Time Warner. But the AG will decide whether or not to vigorously enforce those laws. So those are just some of the really important areas about law enforcement that the attorney general can affect.

GROSS: And what is the relationship of the attorney general to the president? And are there times when the attorney general has to rule on a president's actions?

ROSEN: Yes, there are. We can think of lots of them. During the Clinton administration, Janet Reno had to decide how - whether or not to authorize the appointment of an independent counsel to investigate President Clinton. The independent counsel law has now lapsed. But Attorney General Ashcroft under George W. Bush famously from his hospital bed refused to sign an order authorizing warrantless NSA surveillance 'cause he thought the law didn't authorize it.

So it's - in most administrations, there have been potential clashes between the attorney general and the White House. It's striking that there really weren't during the Obama administration as much, although there's allegations of Attorney General Lynch, you know, making a mistake in meeting President Clinton on the tarmac. But generally, presidents do well to appoint attorney generals they trust. Now, the model of President Kennedy, who appointed his brother and famously said Bobby needed some legal experience, hasn't been repeated that directly. And there's now an anti-nepotism statute that regulates how close presidential appointees can be.

But the model of a completely independent attorney general is unusual in American history. The paradigmatic example is Edward Levi appointed by President Gerald Ford. And Ford, during his brief presidency, really believed that the attorney general should be nonpartisan, like a judge. And Levi famously approached questions like a judge and was remarkably a political. But that's been the exception. And most attorneys general have been close to the president and have supported their actions.

And the Office of Legal Counsel, which is supervised by the attorney general and provides constitutional advice to the president, has tended, in most cases, to approve presidential actions, although there have been notable exceptions where it's said that the president has gone too far.

GROSS: Jeff Sessions has been asked if he would recuse himself if there was a decision pertaining to President Trump, who had appointed him as attorney general. And he said he'd recuse himself if Hillary Clinton was investigated because he used such strong anti-Hillary rhetoric during her campaign. But he'd see no reason to take himself out of the decision if it was a decision pertaining to President Trump. What are your thoughts about that or about precedent pertaining to that?

ROSEN: It's just a really complicated challenge. A bad response to the challenge was the independent counsel law. We're so uncomfortable with the attorney general openly making decisions about whether to prosecute the president who appointed him that, briefly, Congress created this independent counsel statute. But it was so out of control and unaccountable, as Justice Scalia predicted in dissenting from holding his constitutionality, that Congress allowed it to lapse.

But since then, we haven't had a completely satisfactory alternative. And that's why Attorney General Lynch said she would recuse herself from decisions involving Hillary Clinton's emails with the consequences that we saw, leading the FBI Director Comey to make decisions that Department of Justice officials themselves thought went against Justice Department guidelines. So on the one hand, you really want an attorney general to supervise all the policies of the Justice Department.

On the other hand, we're uncomfortable with the lack of independence from the president. And no one has figured out exactly how to strike the balance.

GROSS: Do you think that the courts have become so politicized over the years that they're no longer quite the check or the balance that they were supposed to be?

ROSEN: I don't. There's much to be skeptical about in this polarized age. And it's true that on many issues, from immigration to affirmative action to campaign finance, the courts seem polarized, Democrats against Republicans. But when it comes to enforcing structural checks of the Constitution, to saying that the president has exceeded his authority or even that Congress has gone too far, I think we've seen bipartisan examples of judges coming together, from the Steel Seizure Case to cases involving the Fourth Amendment where the Supreme Court has unanimously been ruling against the government in cases involving the search of cell phones and other data.

So I think that if it came to a real - you don't want to use the word constitutional crisis lightly because the Civil War was a constitutional crisis - but conflict between the president and Congress is not a constitutional crisis. But if it came to a real crisis with the president breaking norms and threatening the Constitution in really clear ways, I'm confident that liberal and conservative judges would rise up to stop him.

GROSS: I'm glad you use the expression constitutional crisis 'cause it's an expression we've been hearing a lot. Does that mean something specifically or is it just an expression we use when we feel that constitutional values are being threatened?

ROSEN: I think many people use it when they think constitutional values are being threatened. We had a great discussion at the Constitution Center in Independence Hall itself over the summer. And the historian Annette Gordon-Reed came up with a great three-part definition of a constitutional crisis, and I'm afraid I forgot what it was (laughter). But it was not lightly applied. In other words, it doesn't apply every time the president and Congress disagree or every time the president is sued.

You could call impeachment a constitutional crisis, I guess, although there's a mechanism for resolving it. But a constitutional conflict is part of the system. That's not a crisis. That's what Madison intended. That was the whole point of dividing power and separation of powers and checks and balances. So suddenly many of us are rediscovering the virtues of these conflicts and the idea of courts independently enforcing these structural checks is seeming more urgently needed than ever.

GROSS: What are you most concerned about constitutionally right now? You're a constitutional scholar.

ROSEN: In one sense, all the constitutional conflict is maybe bad for the country but good for constitutional debate, which is what we exist at the National Constitution Center to host, trying to create a measure of public reason and resurrect the public reason that Madison thought was necessary for public - for democracy to survive. So if you ask what I'm most concerned about, I think it would be the death of that public reason.

If we really do live in a post-fact society and if we're so much in our filter bubbles and echo chambers that citizens can't converge around a common understanding of facts, then we can't sustain the public reason and civil discourse, which includes constitutional discourse that Madison thought was necessary for the republic to survive. The framers were cynical about the future of democracy. They studied failed democracies like Greece and Rome. They read Demosthenes.

They designed a constitution on the assumption that democracy might well deteriorate into demagoguery. And they created these complicated systems in order to filter the will of the people from being directly expressed. So all of these new media technologies, the idea of presidents tweeting directly to the people would have appalled Madison, who thought that direct communication between representatives and the people was the main potential source of tyranny to be avoided.

All of these filtering mechanisms are being undermined by technology, by reforms over the years, by the growing populist forces that are sweeping the world. And maintaining these Madisonian values in the face of these populist forces is something that I think liberals and conservatives increasingly should converge around.

GROSS: When you use the word populist, what do you mean?

ROSEN: Direct expression of the people's will. So Brexit is a populist referendum. You decide a huge constitutional question with one vote. The framers would never have allowed that.

GROSS: Why not?

ROSEN: They believed that you had to filter public opinion so people had time to deliberate. Only after passing through lots of different bodies and tests and checks could representative bodies or constitutional conventions be entitled to speak in the name of we the people. The people's constitutional views are supposed to be their most thoughtful, deliberative, deeply considered views completely separate from the temporary passions of the moment that can be measured by referenda or even by ordinary laws. So the whole constitutional system is designed to avoid spot votes and quick decisions and to ensure deliberation and public reason.

GROSS: And tyranny of the majority?

ROSEN: And tyranny of the majority, absolutely. And tyranny of the minority, too. The framers are concerned both about majority and minority faction. And a faction is any group of people, whether a majority or a minority, that binds together to threaten liberty and to threaten the interests of the people. And it can be mobs online, and it can be expressed in laws. And the framers designed the system to ensure that those forms of tyranny could not survive.

GROSS: Jeffrey Rosen, I want to thank you so much for talking with us.

ROSEN: Thank you. It's been such a pleasure and an honor.

GROSS: Jeffrey Rosen is the president of the National Constitution Center in Philadelphia and writes about legal issues for The Atlantic.

After a break, we'll listen back to an interview with British actor John Hurt. He died last week. This is FRESH AIR.

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