When you stand alone, people can ascribe to you a range of qualities — brave, perceptive, crazy, or ignorant, among others. In the case of Sveen v. Melin, Justice Neil Gorsuch took on that role, acting as the lone dissenter in the 8-1 Supreme Court decision.
In his lonely stand, Gorsuch sought to breathe life into the Contracts Clause found in Article I, Section 10 of the Constitution. That clause declares that no state shall pass a “law impairing the obligation of contracts.” These words once provided a potent protection to individual rights. The Framers intended it to keep state governments from passing laws that relieved persons from fulfilling what they contractually had agreed to do — a legal allowance to violate their word.
Such violations can wreak havoc and perpetuate injustice, for we live contractual lives. At least much of our actions and relationships involve some form of them. We enter into contracts regarding the clothes we buy, the hours we work, the food we purchase, even our marriages. By them we ensure that the way we agree to share our property with others (our money, our labor, our other commitments) is followed.
This clause did not eliminate any regulation of how we interact with each other contractually. The state still could and should set basic rules protecting against dangerous or inherently unjust contracts. But the basic rule cut through these allowances: when a valid contract created an obligation between parties, the state could not step in to violate those terms.
Yet for nearly a century, litigants have found in this clause little protection for their property, at least as the courts have interpreted it. Through a series of decisions, the judiciary gave increasing leniency to states to change various elements of contractual relations. At the same time, they heightened the standard individuals had to prove to show they had been mistreated by such laws. Due to these moves, the Contracts Clause lost its bite. Wins in the courts on its basis are few and far between.
In this case, the litigation involved who should be the beneficiary of Mark Sveen’s life insurance policy when he passed away in 2011. In his policy, Sveen named Kaye Melin, the woman he married in 1997. While the couple divorced in 2007, Sveen did not change that designation during the following four years leading up to his death. Yet under Minnesota law, a law passed after Sveen bought his policy, a divorce automatically voided an ex’s designation as life insurance beneficiary.
The Court, based on its precedent, held that the Minnesota law accorded with the Contracts Clause both in general and as applied to this instance. Contracts must assume in them the laws made by states. Furthermore, it was reasonable to assume that after divorces persons no longer wished to make exes their beneficiaries. Finally, Sveen could have stepped in to change the designation back if he had so wished.
Gorsuch disagreed that such reasoning and assumptions could be made under the Constitution. In so doing, he at first implied a broad assault on the last century (if not longer) of Supreme Court precedent on this clause. He pointed to the “categorical rule” established by the Constitution. Even if “inconvenient” for states, the prohibition on violating a contractual obligation was firm and broad. To truly enforce this point would kill many a long-standing precedent even as it renewed the Contract Clause vigor.
At the same time, Gorsuch’s challenge to this particular instance was relatively modest by comparison. He argued that since Sveen’s life insurance policy predated the Minnesota law, he did not make his designation with the divorce caveat in mind. Gorsuch reasoned that to apply a later-passed law to the contract did more than impair the obligation of that contract; it eliminated it completely, for Melin went from the beneficiary to no beneficiary at all. If this obligation could be eliminated, then what remained of contractual obligations that states could not contravene?
So, what quality should we attribute to Gorsuch’s lonely dissent? From the perspective of pure votes, his position looks daunting. Unless you are John Marshall Harlan, it is rare that 8-1 decisions come back to your vindication. From that of precedent, his opinion smacks of insanity. Following long-standing decisions remains a deeply held, even if imperfectly followed, judicial tenant.
But there is one perspective from which Gorsuch is neither lonely nor insane: the Constitution. While certainly not the definitive interpretation of the Contracts Clause, his reading holds plenty of support in both the Framer’s intentions and early Supreme Court precedent. Given that support, taking his position seriously is far from crazy. And, with time, it should be far from lonely.
Adam Carrington is assistant professor of politics at Hillsdale College.
