Today I read and taught Judge Gorsuch’s anti-Chevron opinion, Gutierrez-Brizuela v. Lynch (2016). It is a brilliant, deep, powerful opinion. My students, left and right, agreed, even if they weren’t necessarily persuaded by it. First, let me note that Gorsuch ruled in favor of an undocumented immigrant against the Board of Immigration Appeals, but that’s not the important point. The legal issue is that Gorsuch believes judges, not executive branch agencies, should interpret statutes. That may seem esoteric, but it is one of the biggest questions in American law because it addresses the deeper questions of judicial independence. Gorsuch’s opinion reflects a thoughtful judge who cares deeply about the separation of powers, checks on the abuse of executive power, and the rule of law. He warns of how “political majorities” threaten the Bill of Rights, due process, and equal protection. He worries that the executive branch “swallow[s] huge amounts of core judicial and legislative power.” I agree. I admit I’ve always been skeptical of Chevron, but the events of the past few months plus this tour-de-force opinion have persuaded me. His vision of the law is Chief Justice Marshall’s in Marbury: “It is emphatically the province and duty of the judicial department to say what the law is.” Keep in mind that Gorsuch published this opinion in August 2016, and I think he may have been observing the same threats that we all were.
The worries that keep me up at night are about Trump/Bannon attacks on our basic democratic values and our Constitution. As a liberal, I may disagree with Gorsuch on 100 other questions, but I am now more open to seeing Gorsuch as a judge who may get our most urgent and desperate questions right. Some friends have told me that Gorsuch was “our best case scenario” and that “we dodged a bullet.” I also note that he is on the opposite side of Scalia on this issue (Scalia was famously and zealously pro-Chevron, despite its obvious problems in terms of Scalia’s own originalism… I’m shocked, shocked!) If I look backward, I want vengeance for how the Senate Republicans stole this seat. If I look forward, I think maybe we owe it not to them, not to Gorsuch, but to ourselves, to keep an open mind. Maybe we got lucky. I link to his opinion here (the key part is p. 15-23).
Update: If this story is real, I’m not feeling so open-minded anymore. I’m just feeling nauseous: http://www.dailymail.co.uk/~/article-4182852/index.html