Raising the Standard.

Nebulous Cries of Social Injustice Plague Gorsuch Hearings

Photo by Joe Ravi from Wikimedia Commons CC-BY-SA 3.0

Do not pervert justice; do not show partiality to the poor or favoritism to the great, but judge your neighbor fairly” (New International Version, Leviticus 19:15). This profound Biblical notion of justice upon which the Anglo-Saxon legal tradition was founded, unfortunately, does not happen to be one to which the Left subscribes. Case in point: the Democrats fierce opposition to President Trump’s Supreme Court nominee, Tenth Circuit Court of Appeals Judge Neil Gorsuch.

While Democrats and the Left would never admit it, the reason for their utter contempt for Judge Gorsuch’s judicial philosophy is the following: Judge Gorsuch believes in justice as Anglo-American legal systems have traditionally construed it—i.e., equality before the law—not ‘social justice.’ It cannot be emphasized enough that ‘social justice’ is not only unrelated to traditional justice, but it is almost always antithetical to it, making it a perilous threat to our republic.  

“We know that the conservative groups that vetted Judge Gorsuch, and the millionaires who fund them, have a clear agenda—one that is anti-choice, anti-environment, and pro-corporate. These groups are confident that Judge Gorsuch shares their agenda,” exclaimed Democratic Senator Patrick Leahy of Vermont during Judge Gorsuch’s first day of confirmation hearings.

A question for Senator Leahy: Is there any evidence that Judge Gorsuch completely disregarded relevant statutes and actively distorted a decision in order to attain an outcome that was auspicious to certain groups? Secondly, even if such nonsense were true, why would judge Gorsuch’s purported “anti-choice, anti-environment, and pro-corporate” sentiments be relevant to a hearing that has as its purpose the determination of his fitness to serve on the Supreme Court of the United States?

I presume Senator Leahy’s answer would be anfractuous, vapid, and saturated more with populist cries of corporate greedcorporations from which the Senator benefits in great numbersthan with facts or cogent statements.

In the first place, Judge Gorsuch’s political positions should only be relevant to such a hearing if that were the basis of his judicial philosophy, which, despite the Left’s smears of originalism, is certainly not. Ironically, however, though political ideology is not the basis for Judge Gorsuch’s judicial philosophy, the same cannot be said, unfortunately, of many Democratic judicial appointees. Indeed, Democrats like Senator Leahy do not object to the use of the courts as a way to further a political agenda. Quite the contrary, in fact, they applaud it—so long as it is pursuant to their political agenda.  

Secondly, and most importantly, the reason for such venomous statements as Senator Leahy’s is one that goes to the heart of the divide on Judge Gorsuch: the very definition of ‘justice.’ And it is my contention that Democrats no longer believe in ‘justice’ at all—they believe in ‘social justice.’

‘Social justice’ is a relatively novel, modern conception of justice and is largely undefined. However, one thing seems rather certain: the fact that it was a term mostly nonexistent until the Progressive Era does not strike yours truly as coincidental in the slightest.

Politicians, both today and historically, have never shied away from wrapping their ideological agenda in the term ‘social justice.’ Therefore, the opponents of the ‘socially just’ policies and judicial outcomes are, ex vi termini, socially unjust. As one can imagine, this makes the phrase extremely useful for demagogic and sophistical purposes. It is much easier for one to categorize dissenters as immoral (i.e., uninterested in social justice) rather than commit oneself to the arduous task of selling the exponential expansion of the State. And unfortunately, appeals to emotion, rather than intellect, resonate with a significant percentage of the population.  

But while pursuit of ‘social justice’ befits the demagogue, it should be avoided for those who don black robes. Its shortcomings as a legal philosophy are twofold: one, it is undefined and indefinable, making it the antithesis of ‘equality before the law’ and thus its permeation into jurisprudence guarantees a chaotic, capricious justice system. And two, it gives federal judges, who are unelected in America, an enormous power that is explicitly delegated to the Congress by the U.S. Constitution.

On the other hand, as the late, great Supreme Court Justice, Antonin Scalia, and brilliant legal lexicographer and co-author, Bryan Garner, point out in Reading Law: The Interpretation of Legal Texts:

As a jurisprudential matter, Anglo-American legal systems are premised on a rule of law that equates justice with conformity to law—nothing more. This notion is referred to as the positive-law theory of justice, whereby the judges follow the law enacted by the legislature [emphasis added] (p. 243).

This approach renders judicial activism virtually impossible. While a ruling may not be pursuant to “cosmic justice”—to use the esteemed Dr. Thomas Sowell’s phrase—‘justice’ has been done insofar as the judge gives the language of the statute in question a fair and reasonable reading and interprets accordingly.

Any other power conferred on a judge in a democratic-republic such as ours would be unseemly. Per our Constitution, it is the legislature’s role to make law and the judiciary’s to interpret it as written. If a law is per se ‘unjust’ in a cosmic sense, indignation should not be directed at the judge, but rather at the legislature.

While this process may seem prima facie slow and unbecoming of a civilized system of government and people, it is the only way to ensure that five unelected individuals—i.e., judges—cannot tyrannically assume the powers of the people’s representatives by interpreting laws in a way that suits their own ideological propensities. But, again, the soundness of this philosophy, and the implications of the alternative, is not something that deeply concerns social justice warriors like Senator Leahy.

The Democrats and the Left care neither about equality before the law nor about processes; rather, they are concerned with cui bono—i.e., to whom or what group is the judicial decision favorable? And as long as the answer to this question is the ‘victims,’ ‘poor,’ or any other individual or group whom they understand to be their own ideological soul mates, to hell with process.

However, this is a radical notion, a far cry from traditional American jurisprudence that should not be dealt with insouciantly. Make no mistake— it is a danger to democracy and republicanism in America.

The framers never intended for the American people to sit on the edge of their seats every time a case came before the Supreme Court. Moreover, the Court was never intended to be the final arbiter of Americans’ constitutional rights, and our inalienable rights were certainly not to be tinkered with by legal abstractions in a cloistered cloakroom. But such tinkering has great appeal to the Left.

Pursuing ‘social justice’ and flouting the laws that were written by the people’s representatives is of great benefit to the Left’s cause. Their political values become enshrined and shielded from democratic debate simply because a judge may retroactively rewrite the Constitution and elevate said values to the status of Constitutionally guaranteed rights. This is a quick and powerful method to pursue their utopian vision.

Convincing the people of their ideology’s superiority is laborious and has largely been rejected by the American people as evidenced by the political makeup of state governorships, legislatures, the Congress, and now the presidency in this country. Why do all of that work when you can file a suit, take it to the court, and hope that noble, ‘socially just’ judges will have a great moral sunburst and find that your grievances were specifically addressed right there in the Constitution all along!

This should be kept in mind as one watches the Democrats pound away at Judge Gorsuch, an utterly decent man and, so far as one can tell, a good judge. Judge Gorsuch’s judicial philosophy is not ‘anti’ anybody and is by no means radical. On the contrary, it is those who would have us believe this, Leftists like Senator Leahy, who are the energumens that are seeking to remake society with government—all under the guise of ‘social justice.’

— Ross Dubberly is Assistant Editor at THE ARCH CONSERVATIVE and Co-Chairman of the Young Americans for Freedom at UGA.

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