Judicial Conversations: Justice Gorsuch Wages War for the Constitutional Order

Trump’s Supreme Court pick has a message for Congress: ‘Do your job.’If you had to list the top five reasons for political polarization and the collapse of American confidence in American government, where would you start? Would you focus on discrete events such as the Iraq War or the Great Recession, or discrete policies such as trade or health care? Would you focus on larger cultural forces, such as the fact that we’re sorting into geographically distinct political and religious enclaves?

Here’s the plain truth — if you live in a safe red or blue state, you may never in your entire life cast a single meaningful vote to influence the two most powerful instruments of modern governance, the presidency and the judiciary. You’re left with casting votes for the (unintentionally) weakest branch, a legislature that seems to want to do anything but the job the Founders gave it.

Enter Justice Neil Gorsuch, one-man warrior for the constitutional order.

Yesterday, Justice Gorsuch struck his latest blow against a lazy and ineffectual Congress with an opinion that began like this: “In our constitutional order, a vague law is no law at all.” Writing for a five-justice majority (he joined the court’s liberal wing), Justice Gorsuch declared unconstitutional a federal statute that “threatens long prison sentences” on individuals who use firearms when committing crimes “that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

But that’s not the only case this term where Justice Gorsuch sent a shot across Congress’s bow. In Gundy v. United States, he joined with justices Thomas and Roberts to send a clear signal that the Court may be ready to resuscitate something called the “nondelegation doctrine.” In essence, the doctrine holds that there are some jobs that only Congress can do. Like, for example, writing criminal statutes.

But the real legal action was in Justice Gorsuch’s dissent. It began, as his opinions so often do, with a ringing declaration of principle and purpose:

The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?

What followed was a lesson in American constitutional history in which Justice Gorsuch painstakingly noted that the Framers predicted exactly the constitutional malady that afflicts the United States, where all too often “legislation [risks] becoming nothing more than the will of the current President.”

There is great power in Justice Gorsuch’s consistency. The ideological alignment of the decision matters not. The commitment to constitutional order is paramount. And a fundamental facet of that constitutional order is Congress’s nondelegable duty to write laws that clearly and constitutionally specify Americans’ legal obligations.

That’s a duty that Congress has shirked for decades. Thanks in large part to Justice Gorsuch, it is now being dragged back into its proper constitutional prominence — whether it likes it or not.