Higher Justice

Donald Trump embodies one alternative to Obama’s progressivism—as he reiterated in his Republican National Convention address. At “a moment of crisis for our nation,” when elites “have rigged our political and economic system for their exclusive benefit,” Trump was entering “the political arena so that the powerful can no longer beat up on people who cannot defend themselves.” The system is corrupt, he urged, and “I alone can fix it.” Trump’s primary tool in “fixing it” is the force of raw political energy: to break down the nation’s cockpit door and seize control back by force, as Michael Anton put it in his “Flight 93 Election” essay; or, as top Trump adviser Steve Bannon suggested a few years earlier, to fan “a fire that will burn” from “the high plains of this country .  .  . all the way to Washington.”

Six months later, having won the election and taken office, President Trump made filling the late Justice Antonin Scalia’s vacant Supreme Court seat one of his first priorities. But the man he nominated was no flamethrower or cockpit-door-smasher: Neil Gorsuch is rather a highly regarded federal judge from Colorado. “The qualifications of Judge Gorsuch are beyond dispute,” Trump told the audience assembled in the White House’s East Room and viewers watching nationwide. “He is .  .  . a man who our country really needs and needs badly to ensure the rule of law and the rule of justice.”

President Trump is right—but perhaps even more so than he realized as he stood with Judge Gorsuch in the East Room. Gorsuch’s opinions and other writings do indeed present an alternative to progressive constitutional decline. But in his view of constitutional checks and balances, in his self-professed “native optimism” about our country and the rule of law, and in his rejection of modern “cynicism about the law” that “flourishes so freely” in today’s political arena, Gorsuch also offers an alternative to Trumpism itself.

By now the nominee’s biography is already well-rehearsed (see, for example, Terry Eastland’s “A Great Scalia Successor” in these pages last week). The Colorado-born son of David and Anne Gorsuch, Neil moved to Washington in 1981 when President Ronald Reagan tapped his mother to lead the Environmental Protection Agency. While in high school, he worked as a Senate page. After college at Columbia (where he cofounded The Federalist Paper, a conservative student publication) and then Harvard Law School, Gorsuch became a highly regarded litigator at one of Washington’s elite firms and then a senior official in President George W. Bush’s Justice Department. Along the way, he obtained a doctorate from Oxford, and in 2006 Princeton University Press published The Future of Assisted Suicide and Euthanasia, Gorsuch’s nuanced, scholarly contribution to a series edited by Professor Robert George. That same year, President Bush appointed Gorsuch to the U.S. Court of Appeals for the Tenth Circuit, with the Senate’s unanimous confirmation.

Between law school and private practice, Gorsuch clerked for three significant but quite different judges, each of whom has a legacy in Gorsuch’s own work. First, he clerked for Judge David B. Sentelle at the U.S. Court of Appeals for the D.C. Circuit. “If you’ve ever met Judge David Sentelle,” Gorsuch observed in his East Room remarks, “you’ll know just how lucky I was to land a clerkship with him right out of school.” Sentelle was one of President Reagan’s several prominent judicial appointees who expressly anchored their jurisprudence in the Framers’ original meaning, and whose statutory interpretations focused foremost on how the words of a given statute were understood at the time of its enactment. And this is the approach that Gorsuch himself espouses, as he did in a speech last year: Judges should “strive (if humanly and so imperfectly) to apply the law as it is .  .  . looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

Gorsuch next clerked for two Supreme Court justices who were in many respects mirror images of one another: the retired Justice Byron White and the newly appointed Justice Anthony Kennedy. White was appointed by a Democrat (JFK) but ultimately came to be seen as a conservative, especially in temperament; Justice Kennedy was appointed by a Republican (Reagan) but is most famous today for his opinions—marked by grandiose rhetoric—saving Roe v. Wade and creating a constitutional right to same-sex marriage.

White’s and Kennedy’s differences go beyond matters of style and sensibility; the two justices approached questions of constitutional structure in diametrically opposed ways. Comfortable with the New Deal’s constitutional innovations, Justice White dissented from his colleagues’ opinions questioning Congress’s delegation of broad powers to regulatory agencies and other statutes (like those providing for Congress’s “legislative veto” of agency action) that blurred the lines traditionally separating the provinces of the executive and the legislature. Justice Kennedy, by contrast, pens opinions urging his colleagues to hold fast to the Constitution’s tripartite structure; he sees the separation of powers, checks and balances, and limits upon Congress’s delegation of power to agencies as crucial safeguards for limited government and individual liberty. (See my essay “Kennedy’s Question,” April 28, 2014.)

Gorsuch seems to have adopted the best traits of both Supreme Court mentors: White’s conservative temperament and respect for the people’s right to govern themselves and Kennedy’s recognition that liberty and republican self-government require a constitutional structure to channel political passions toward reasoned ends. “These judges brought me up in the law,” Gorsuch said in the East Room. “Truly, I would not be here without them.”

And so Trump nominated him to succeed another great justice, Antonin Scalia. Even among progressives, Gorsuch has won plaudits. Richard Lazarus, a prominent environmental law professor and experienced Supreme Court litigator, called Gorsuch “the single most qualified person” on Trump’s list of judges, “a man of enormous achievements” who “is smart and has integrity.” Lazarus’s Harvard Law School colleague Laurence Tribe says that “Gorsuch is as smart as he is conservative, and he writes elegantly. .  .  . He’s a brilliant, terrific guy who would do the court’s work with distinction.”

Given the universal recognition of Gorsuch’s lawyering skill, the best analogue for his upcoming Senate confirmation may be not Justice Scalia, to whose constitutionalism Gorsuch’s is rightly compared, but Chief Justice John Roberts. Like the chief, Gorsuch is an impeccably credentialed, skillful, and intellectual lawyer with an understated, moderate temperament. While Gorsuch probably cannot hope to match Roberts’s tally of 78 Senate votes in favor of his confirmation, senators will likely find Gorsuch as difficult to besmirch as they did Roberts.

Still, Gorsuch will have to endure a confirmation proc­ess that has changed dramatically since Justice White’s own appointment 55 years ago. Indeed, when Gorsuch reflected on the confirmation process and the late Justice White in a 2002 essay, he stressed the astonishing difference between Senate confirmations then and now: “There is another sense in which we shall not look upon the like of Justice White again. He was confirmed less than two weeks after his nomination; his hearing lasted 90 minutes.”

The Senate confirmed White with a voice vote. For Gorsuch, the loudest voices he will hear will be the critical chorus of Democrats on the Senate Judiciary Committee (and progressive activists surrounding the process), peppering him with pointed questions about decisions he made on the Tenth Circuit and decisions that he might make on the Supreme Court.

In questioning judicial nominees, senators tend to reliti­gate the Supreme Court’s most recent hot-button cases. In 2006, the senators pressed Samuel Alito on presidential war powers; in 2010, they focused on the Court’s recent decisions on gun rights and corporate speech. Now, in the aftermath of Supreme Court decisions protecting the Little Sisters of the Poor, the owners of Hobby Lobby, and others from Obama­care policies that unlawfully burdened their free exercise of religion, senators will surely press Gorsuch on not just his judicial decisions, but also his euthanasia writings.

As it happens, the Supreme Court heard the Hobby Lobby case after Gorsuch himself had heard the case in the Tenth Circuit. There he joined the majority holding that the Hobby Lobby and Mardel companies qualified for protection under the Religious Freedom Restoration Act, against the Obama agencies’ efforts to force them to subsidize potentially abortion-inducing drugs for their employees. In addition to joining the majority opinion, Gorsuch wrote separately to emphasize the choice faced by the companies’ owners, in characteristically eloquent terms:

Senators will also focus on other votes that Gorsuch has cast on the Tenth Circuit: joining Judge Harris Hartz’s subsequent opinion in the related Little Sisters of the Poor case; supporting local officials’ discretion to place a Ten Commandments statue among other “markers of our nation’s legal and cultural history” on public property; dissenting from the court’s refusal to rehear en banc a decision prohibiting the placement of privately funded memorials for fallen state troopers on public property; and dissenting from the court’s refusal to rehear en banc a decision requiring Utah to continue to send public funds to Planned Parenthood.

And some senators will press Gorsuch on the subject of euthanasia, for hints as to how he might rule in future abortion cases. They will quote policy arguments from his book that are “premised on the idea that all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” But the same senators will likely ignore Gorsuch’s equally emphatic writings elsewhere that judges are obligated “not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best. As Justice Scalia put it, ‘if you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach.’ ”

But while abortion will assuredly cast its familiar shadow over the Gorsuch hearings, and religious liberty will also draw significant attention, they may not be the predominant issues. Instead, the first Supreme Court nomination hearings of the post-Obama era may ultimately be remembered as focusing on Gorsuch’s view of an issue that defines the Obama years: the modern administrative state.

“The administrative state ‘wields vast power and touches almost every aspect of daily life,’ ” Chief Justice Roberts wrote in a 2013 opinion criticizing the Supreme Court’s deference to federal agencies’ interpretations of statutes. “The Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities. .  .  . ‘[T]he administrative state with its reams of regulations would leave them rubbing their eyes.’ ”

For nearly a century, federal governance has primarily meant creating new agencies to wield immense (if not altogether unlimited) powers. And for three decades, the Supreme Court and federal courts have mostly respected that power, deferring to agencies’ “reasonable” interpretations of “ambiguous” statutes (a doctrine known as “Chevron deference,” for the case that gave rise to it). The convergence of those trends was a bipartisan affair. Liberals and progressives championed the creation and expansion of administrative agencies, while Chevron and other recent doctrines of judicial deference were originally advocated by conservatives who believed that regulatory policy should be driven more by the politically accountable president than by politically unaccountable judges.

But Chief Justice Roberts’s critique of our “vast and varied federal bureaucracy,”—joined by Justice Kennedy and Justice Alito—exemplified a fundamental objection that conservatives and even some progressives are increasingly levying against administrative supremacy. In Congress, legislators in both houses and both parties are considering how to impose more limits or at least more accountability on federal agencies. Elsewhere, law professors and authors are writing countless articles and books criticizing the very premises of the modern administrative state—the most prominent being Philip Hamburger’s Is Administrative Law Unlawful? For Hamburger and others, the question is purely rhetorical.

Now Supreme Court justices and lower-court judges are asking these same fundamental questions about the legitimacy of the administrative state. In addition to Roberts’s 2013 opinion (focusing ultimately on Chevron‘s limits), both Justices Clarence Thomas and Alito have issued a series of opinions making similar points. Justice Alito has raised questions about judicial deference and has called for reinvigoration of our system of legislative checks and balances; Justice Thomas has not just raised questions about deference and about the breadth of powers vested in agencies, but also proposed answers that would significantly rein in federal agencies.

And these criticisms echo in the lower courts. In September, for example, Judge Diarmuid O’Scannlain—a rare conservative on the supremely liberal Ninth Circuit—wrote that his circuit’s judges, by maintaining an overly deferential approach to agencies, had “spun out of the known legal universe and are now orbiting alone in some cold, dark corner of a far-off galaxy, where no one can hear the scream ‘separation of powers.’ ”

Judge Gorsuch is a leading contributor to this national judicial conversation. In a series of recent opinions, Gorsuch has questioned the modern administrative state’s twin pillars: Congress’s delegation of immense power to the agencies (which courts are loath to prohibit), and the courts’ deference to the agencies’ expansive interpretations of their own powers.

In his most prominent decision, Gutierrez-Brizuela v. Lynch (2016), Gorsuch focused on a corollary to Chevron deference: the Brand X doctrine. Under Chevron, the courts defer to an agency’s reasonable interpretation of ambiguous statutes, even when there are many possible—even superior—alternative interpretations. Brand X (2005), decided two decades after Chevron, cast the implications of that approach in high relief: Even if the courts have already affirmed an agency’s previous “reasonable” interpretation of an “ambiguous” statute, the agency remains free later to adopt a different “reasonable” interpretation—and the courts must then defer to the new interpretation instead. In such a case, the agency’s new interpretation supersedes—or even, some argue, “overrules”—the court’s previous decision.

Gorsuch’s majority opinion in Gutierrez-Brizuela opened by stating the matter bluntly, calling it “the thorny problem [of] what to do when an executive agency, exercising delegated legislative authority, seeks to overrule a judicial decision.” Even after writing the majority opinion, Gorsuch added a separate “concurring” opinion, to explore the problem more thoroughly: “There’s an elephant in the room with us today. We have studiously attempted to work our way around it, and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”

Like Justice Kennedy, Gorsuch sees the issue not simply as one of constitutional theory or good government (though it is that, too), but fundamentally one of individual liberty: “Under Chevron, the people aren’t just charged with awareness of and the duty to conform their conduct to the fairest reading of the law that a detached magistrate can muster. Instead, they are .  .  . required to guess whether the statute will be declared ‘ambiguous’ (courts often disagree on what qualifies); and required to guess (again) whether an agency’s interpretation will be deemed ‘reasonable.’ Who can even attempt all that, at least without an army of perfumed lawyers and lobbyists?”

And Gorsuch ties this to the parallel question of Congress’s authority to delegate open-ended powers to the agencies in the first place. To be clear, execution necessarily involves discretion. Since the republic’s earliest years, Congress has vested the executive with power to make factual (or factual-ish) findings that trigger policy implications. And for nearly as long the Supreme Court has expressly acknowledged that Congress might decide the basic questions of policy while allowing the executive to resolve “details” or fill “gaps.” But, Gorsuch observes, modern Supreme Court doctrine requires only that Congress set an “intelligible principle” for agencies to follow in imposing regulations—a very low bar, affording agencies effectively boundless discretion.

Gorsuch also observed in Gutierrez-Brizuela that the doctrine of Chevron deference, combined with judicial approval of Congress’s delegation of vast regulatory powers to agencies, ultimately degrades the lawmaking process itself. “When the political branches disagree with a judicial interpretation of existing law, the Constitution prescribes the appropriate remedial process. It’s called legislation.” But when administrative agencies seek to change law, they need not endure the intentionally “arduous” legislative process; rather, they can simply “re-interpret” the law and swiftly move forward with new legal effect. And, one might add, legislators and bureaucrats all know this, and thus too often lack real incentive to do the hard work of substantive legislation at all.

Some roots of Gorsuch’s recent critiques can be found early in his tenure. In a 2008 opinion, for example, he noted the Supreme Court’s warning that statutes “should be construed to avoid” serving as “sweeping delegation[s] of legislative power,” because such grants of legislative power “might be unconstitutional.” But elsewhere he seemed much more comfortable with the “flexibility” that Congress and courts afford agencies. “After all,” he wrote in a 2009 opinion, “ ’flexibility in reconsidering and reforming of policy,’ including the opportunity to choose between temporary and permanent rulemaking, is ‘one of the signal attributes of the administrative process’ .  .  . and courts will not lightly interfere with it.”

If one wants to trace Gorsuch’s newly vocal reformist approach to a single case, it would appear to be De Niz Robles v. Lynch (2015). In that case, a Mexican citizen married to an American, the father of four American children, had been deported to Mexico. Two years later, after failing to obtain a visa, Alfonzo De Niz Robles reentered the country anyway. At the time, one federal statute seemed to require De Niz Robles to wait two years before attempting to lawfully reenter, but another statute seemed to allow the attorney general to waive that requirement. When the issue of these two statutes first reached the Tenth Circuit, the Justice Department’s Board of Immigration Appeals concluded that the statutes were best interpreted as giving the attorney general discretion to allow earlier reentry, and the Tenth Circuit deferred to that interpretation. But years later, after De Niz Robles applied for an adjustment of his status in reliance on the Tenth Circuit’s decision, the BIA changed its position and concluded that the attorney general lacks any such discretion to waive the requirement—and then imposed its new policy on De Niz Robles, declaring him subject to removal from the country once again.

Gorsuch and his colleagues held that Brand X gives the BIA discretion to change its policy, but not to impose its new policy retroactively on De Niz Robles. Still, the agency’s broad discretion under Chevron and Brand X to radically reverse its position clearly troubled Gorsuch. In a speech last year, he held De Niz Robles’s case up as an example of dangerous decay in constitutional structure: “What does this story suggest? That combining what are by design supposed to be separate and distinct legislative and judicial powers poses a grave threat to our values of personal liberty, fair notice, and equal protection. And that the problem isn’t just one of King George’s time but one that persists even today.”

By invoking King George, Gorsuch isn’t implying that the problem is simply one of malicious rulers. For he has used the analogy on multiple occasions, in different terms that highlight the real problem. In Gutierrez-Brizuela, Gorsuch writes, “In enlightenment theory and hard won experience under a tyrannical king the founders found proof of the wisdom of a government of separated powers.” But in U.S. v. Nichols (2015), Gorsuch writes, “The framers worried that placing the power to legislate, prosecute, and jail in the hands of the Executive would invite the sort of tyranny they experienced at the hands of a whimsical king.”

The distinction is telling. For Gorsuch, as for the Framers, the point of not vesting an executive with unchecked powers was not that unchecked powers shouldn’t be vested in bad executives. The point is that no executives should be vested with powers that are unchecked—and that the friction of constitutional checks and balances is a crucial safeguard of liberty.

And finally, Gorsuch sees the problem as one of basic due process. From time to time he invokes Federalist 62 on the inherent dangers of government imposing waves of voluminous laws: “It poisons the blessing of liberty itself,” Madison warns, for it “will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

That is the administrative state, where (as Gorsuch wrote in a 2014 opinion) “the Code of Federal Regulations today finds itself crowded with so many ‘crimes’ that scholars actually debate the number,” and where the ever-shifting regulatory commands are too voluminous to count.

Gorsuch’s writings stop short of the strictures of, say, Justice Thomas or Professor Hamburger against the administrative state. One wonders whether Gorsuch, a lifelong practicing lawyer, would share their zeal in calling for a sweeping invalidation of federal laws under the nondelegation doctrine; Gorsuch himself has not called for this. But even Gorsuch’s more limited criticism is a striking rejection of the premises that undergird the modern progressive administrative state. And Gorsuch thus embodies a stark alternative to the Obama administration’s expansion and weaponization of that state. But he also embodies a stark alternative to another destructive trend.

Perhaps the darkest moment of Donald Trump’s campaign for president was his flurry of attacks on Gonzalo Curiel, a federal judge who had the misfortune of being assigned the task of adjudicating claims of fraud against “Trump University.” Though Judge Curiel is an American—a native Hoosier—Trump grew publicly obsessed with the Mexican roots of Curiel’s parents, and he vented his obsession on the campaign trail. At a rally in San Diego last May, Trump whipped the crowd up in anger against the judge: “It’s a disgrace the way the federal court is acting, because it is a simple lawsuit. .  .  . Everybody says it, but I have a judge who is a hater of Donald Trump. A hater. He’s a hater. His name is Gonzalo Curiel. [Crowd boos.] And he is not doing the right thing. .  .  . Because he’s given us ruling after ruling after ruling, negative, negative, negative. .  .  . So what happens is the judge, who happens to be, we believe, Mexican, which is great. I think that is fine. .  .  . But I will say this. I think Judge Curiel should be ashamed of himself. I think it’s a disgrace he is doing this.” Trump called for an investigation into the judge. And days later, Trump put the point even more bluntly to the New York Times: “I’m building the wall, I’m building the wall. .  .  . I have a Mexican judge. He’s of Mexican heritage. He should have recused himself, not only for that, for other things.”

If memories of Trump’s astonishing fury against Judge Curiel had faded since the election, they were brought back to mind by President Trump’s reaction to a controversial judicial decision against his administration’s policies—specifically, against the president’s executive order on refugees. He mocked federal district judge James Robart as a “so-called judge,” and suggested that any blood spilled by future terrorist attacks would be on the hands of Robart and other judges.

As with any administration, the first negative judicial decisions won’t be the last. And so President Trump’s furious reaction to initial judicial speedbumps portends four more years of presidential efforts to delegitimize legal rulings and the judges who sign them.

When Senator Richard Blumenthal pressed Judge Gorsuch on Trump’s comments during a pre-confirmation-hearing meeting, Gorsuch evidently told the senator that such attacks on the integrity of judges are “disheartening and demoralizing.” Blumenthal then quoted Gorsuch to the press, sparking a round of media commotion.

President Trump, surprised by word of Gorsuch’s view, denounced Blumenthal as a liar. (Former senator Kelly Ayotte then confirmed that Gorsuch has made clear he finds any such attack on judges disheartening and demoralizing.) But if Trump was caught off guard by Gorsuch’s instinctual reaction, he shouldn’t have been. Throughout his career, Gorsuch has been a vocal defender of judicial independence and integrity, and a critic of the burgeoning cynicism that seeks to delegitimize disagreeable judicial opinions as simply the stuff of politics.

In his 2002 appreciation of Justice White, for example, Gorsuch criticized the modern judicial confirmation process in which “there are too many who are concerned less with promoting the best public servants, and more with enforcing litmus tests,” hoping judges will “advance favored political causes once on the bench.” Gorsuch hoped that White’s passing would “serve as a wake-up call to both political parties that their responsibility in picking judges is to help the nation find objectively excellent public servants, not turn the process into an ideological food fight.”

Gorsuch’s criticism of political ideology in judicial confirmations is not unassailable. Indeed, Justice Scalia himself warned in Planned Parenthood v. Casey (1992) that the political tenor of judicial confirmations is the inevitable result of a Supreme Court that imposes policy and value judgments upon the people through the guise of Fourteenth Amendment rights-making. “The people know that their value judgments are quite as good as those taught in any law school—maybe better,” Scalia wrote. “If, indeed, the ‘liberties’ protected by the Constitution are, as the Court says, undefined and unbounded,” then “the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them.”

“Value judgments, after all, should be voted on, not dictated,” Scalia concluded, “and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.” In short, the only way to end ideological politicization of Supreme Court confirmations will be first to end the Court’s own ideological interventions into political matters properly reserved to the people and their elected representatives.

That said, to recognize that courts are too political is not to justify preemptively denouncing the motives and integrity of every judge who issues a disagreeable opinion (let alone to justify such demagogy by the president himself). And this is a point that Gorsuch pressed eloquently when he delivered the Federalist Society’s 2013 Barbara Olson Memorial Lecture, later published under the title “Law’s Irony.”

“These days our culture buzzes with cynicism about the law,” he said. “So many see law as the work of robed hacks and shiny suited shills. Judges who rule by personal policy preferences. Lawyers who seek to razzle dazzle them. On this view, the only rule of law is the will to power.”

“Maybe in a dark moment you’ve fallen prey to doubts along those lines,” he added.

But Gorsuch, citing his own “native optimism,” urged the audience members to raise their sights. “I wonder whether the law’s greatest irony might just be the hope obscured by the cynic’s shadow. I wonder whether cynicism about the law flourishes so freely only because—for all its blemishes—the rule of law in our society is so successful that it’s sometimes hard to see.” In other words, speeches (or tweets) attacking judges might catch our attention only because we realize how fundamentally such attacks contrast with our own assumptions and experience.

Gorsuch sees judges as servants, not giants. Foreshadowing President Trump’s nomination-day acknowledgment that Gorsuch “could have had any job at any law firm for any amount of money, but what he wanted to do with his career was to be a judge,” Gorsuch told the Federalist Society audience in 2013 that ours “is a judiciary of honest .  .  . black polyester.”

Gorsuch returned to such thoughts in a 2014 opinion reflecting upon the profound questions that a judge must ask and answer before imposing a sentence on a criminal. “There’s rarely a single right answer to hard questions like these,” Gorsuch observed in an opinion joined by his original judicial mentor and former trial judge, Judge Sentelle. “So our system depends, as perhaps it must, on the discretion of thoughtful judges.”

So it does. And while we will often disagree with judges’ decisions, we must take care not to delegitimize the judiciary itself, for the alternative is far worse.

Judge Gorsuch, in sum, stands not just as an alternative to Obama’s progressive administrative supremacy, but also to Trump’s vehement, reflexive attacks on federal judges. But perhaps it is not too late to change. As Judge Gorsuch spends the next weeks and months expounding upon our constitutional system, he could be the living example that inspires President Trump, his advisers, his supporters, and all of us to better appreciate the republican virtues that Gorsuch himself strives to embody. ¨

Adam J. White is a Hoover Institution research fellow and coauthor of Policy Reforms for an Accountable Administrative State, part of National Affairs’ three-book series, “Unleashing Opportunity.”