A popular refrain among critics of Judge Neil Gorsuch, President Trump’s nominee to the Supreme Court, is that he doesn’t stand for the little guy.
That claim doesn’t seem to hold true, especially when it comes to property rights.
Consider, for example, Gorsuch’s apparent position on the Supreme Court’s 2005 Kelo v. City of New London ruling.
In that case, the Court held in favor of eminent domain, ruling that the government could use the “takings clause” of the U.S. Constitution to confiscate private property legally for the purpose of redevelopment.
Justice Clarence Thomas, who was reportedly “livid,” issued an originalist dissent separate from the dissent written by then-Justice Sandra Day O’Connor.
“Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning,” Thomas wrote.
“Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not,” he added.
Thomas’ writing stuck a chord with Gorsuch.
“I am blown away by Thomas’ dissent,” he wrote at the time in an email to two friends.
“Brilliant stuff that completely demolishes the majority,” he added. “Reminds us of the plain textual meaning of the Constitution and then breathes life and vital purpose into it, explaining the weaknesses of misguided judicial glosses.”
Gorsuch’s remarks on the matter, which came to light only very recently after the Justice Department turned over his emails to Congress, is one that favors the “little guy” against coercion from the government and other faceless entities.
It’s worth noting that Gorsuch isn’t alone in siding against the Supreme Court’s Kelo ruling.
“The ruling was also denounced by many liberal living constitutionalists, including Ralph Nader, the NAACP, Howard Dean, and even socialist Bernie Sanders,” Volokh Conspiracy contributor and George Mason University law professor Ilya Somin noted this week.
“That’s because economic development and “blight” condemnations tend to victimize the poor, racial minorities, and the politically weak for the benefit of politically connected developers and other powerful interest groups,” he added. “It is no accident that Kelo generated a massive political backlash that cut across conventional partisan and ideological lines.”
It’s also worth noting that Gorsuch siding with Thomas on eminent domain stands in sharp contrast to Trump’s repeated abuse of such powers.
At any rate, “Justice Scalia had a pretty good, even if still imperfect, record on constitutional property rights. Gorsuch could turn out to be better,” Somin noted.
The fact that Trump’s Supreme Court nominee sided with Thomas on Kelo would seem to fly in the face of Democratic lawmakers’ anti-“little guy” claim narrative.
Sen. Mazie Hirono, D-Hawaii, for example. said during the judge’s hearing, “I have not seen that the rights of minorities are a priority for you. In fact, a pattern jumps out at me. You rarely seem to find in favor of the little guy.”
Sen. Dianne Feinstein, D-Calif., asked separately, “How do we have confidence in you that you won’t be just for the big corporations? That you will be for the little men?”
Senate Minority Leader Chuck Schumer, D-N.Y., said elsewhere, “Obviously, the social issues are always looming out there with any justice. But where he’s particularly vulnerable is in this anti-worker, pro-corporate record. And second, he cannot really cite examples of him being independent other than saying, ‘Ask people.'”
“There’s a whole pattern,” the Democratic leader said at a different venue. “He sort of expresses sympathetic words in many of these cases, but then his decision is coldly — he would say pragmatic, we would say coldly — on the side of the big interests.”
Then there’s bit of nonsensical commentary from Sen. Kamala Harris, D-Calif., who said, “Judge Gorsuch has consistently valued legalisms over real lives. I won’t support his nomination.”
For what it’s worth, everyone benefits when judges value legalism over all else. That’s what they’re supposed to do.
