Vikram Amar is the dean of the law school at the University of Illinois at Urbana-Champaign.
There is a lot of talk these days about judicial independence, given President Trump’s criticisms of recent judicial rulings and — more problematically — judges themselves. Judicial independence is undeniably one of the pillars of the Constitution, but it is also sometimes distorted to impede another constitutional structural element: the Senate’s assessment of Supreme Court nominees. Too often, nominees — by both parties, it should be emphasized — refuse to comment on past Supreme Court cases during Senate questioning on grounds that such comments could compromise judicial independence once someone joins the court.
The best way to discern where a nominee may move the nation’s jurisprudence is to get him or her to weigh in on particularly contentious cases. Platitudes about originalism, textualism, activism or states’ rights mean little until you get someone to apply these notions to actual disputes that have divided the justices in recent times. When William Brennan and Antonin Scalia would offer the same basic answer to a question about judicial meta philosophy (as is often true of the queries senators pose), that question is not very helpful.
The idea that a nominee should not give views about actual cases because doing so might force a prejudging of issues that may come before the nominee later makes no sense. Of course nominees should not make — or be asked to make — promises about future rulings. But the disclosure of specific, albeit provisional, views about past cases does not commit nominees to rule in any particular way in the future. They remain free to refine their thinking or even change their minds altogether, as sitting justices are free to do, even if they have spoken publicly on these matters in deciding earlier cases. Surely no one thinks current justices are conflicted because they have opined on similar issues in prior decisions.
Which cases should modern nominees such as Judge Neil Gorsuch be required to weigh in on? There are many to choose from, but here are five particularly telling ones, all of which were decided by a narrow majority:
Obergefell v. Hodges: In 2015, the court invalidated state laws that prohibited same-sex marriage. Discussion of Obergefell would provide insight into a nominee’s views not only on how to apply equality principles in the LGBT setting, but also on whether and when “substantive due process” — the foundation of modern sexual privacy and abortion protections — is appropriately invoked.
Citizens United v. Federal Election Commission: The 2010 ruling striking down a federal law prohibiting nonprofit corporations from making independent campaign expenditures bears not only on the hugely important question of money in politics, but also on the legitimacy of many modern freedom-of-speech protections that may not always be supported by originalist evidence.
Fisher v. University of Texas: This 2016 decision upheld the University of Texas’ s use of race in admissions. A nominee’s thoughts on this case could signal whether he or she thinks the equal protection clause provides asymmetrical protection to racial minorities, and — importantly — what kind of originalist the nominee is (insofar as the originalist evidence against the permissibility of affirmative action strikes many analysts as thin).
Printz v. United States: In 1997, the court struck down the federal Brady Law provision requiring local law enforcement to conduct gun-purchase background checks. The case could be a useful platform to explore how much protection a nominee thinks state and local executive officials constitutionally enjoy from “commandeering” by the feds.
Employment Division, Oregon Department of Human Services v. Smith: This 1990 holding that the free exercise clause of the First Amendment does not confer a right for someone practicing a religion to be presumptively exempt from generally applicable laws (in this case, peyote consumption laws) remains the biggest recent ruling on religious liberty and the Constitution. Hearing a nominee’s views on this case would be particularly important today, given that issue’s enduring importance.
From what I know of Gorsuch thus far, I would favor his confirmation, but if senators cannot unearth and examine his views about these and other key cases decided in recent years, I might feel differently and the hearings will largely be a waste of time for the senators, the nominee and the public.
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