‘Seems Like a Good Line, But It’s Actually Wrong’: Law Prof Schools Justice Gorsuch on Founders’ View of Judges

In a wide-ranging interview with CNN last month, Supreme Court Justice Neil Gorsuch summed up his originalist judicial philosophy as being rooted in how he believes America’s Founders viewed the role a judge.

“Do you really want me to rule the country?” Gorsuch asked rhetorically. “It is a raucous republic and the battle of ideas is what our founders had in mind,” the Justice said, adding that it is not up to “nine old people in Washington sitting in robes telling everybody else how to live.”

But according to Carissa Byrne Hessick, the Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina, Gorsuch’s take on originalism runs contrary to the Founders’ actual view.

Responding directly to Gorsuch’s take on judges not being charged with telling people how to live, Hessick said it “seems like a good line, but actually it’s wrong,” before providing historical context for her opinion.

“When our country was founded, judges played a major role in telling people how to live their lives. They decided the substance of the vast majority of the law, including the criminal law,” she wrote Monday.

“To be sure, Congress and state legislatures sometimes passed laws. But the vast majority of law was judge-made law called ‘common law.’ The Founders obviously knew the source of law when they created this country. So Gorsuch is, to put it bluntly, wrong,” she concluded.

Professor Hessick was careful to note that she was not advocating that judge-made laws were superior to modern legislation; rather, she was pointing out that claiming judges should not make law is not an originalist argument, arguing that “the Founders thought judges were entirely a legitimate source of law.”

She then highlighted a turning-point in U.S. jurisprudence which marked a “dramatic departure” from the Founders’ notion of how laws should be codified.

“We’ve moved away from the idea of judges as primary lawmakers–both as a matter of practice and of doctrine. For example, the Supreme Court said that federal judges couldn’t recognize common law crimes in 1812,” she wrote, pointing interested readers to two law review articles that provided a more in-depth analysis of the topic.

Hessick concluded by stating that originalists such as Gorsuch often misunderstand their own judicial philosophy in relation to the Founders’ view of the common law in early America.

“In any event, I’m disappointed that Justice Gorsuch doesn’t appear to be familiar with early American history. And he is hardly alone,” Hessick wrote. “There are a number of people who consider themselves originalists who assume that the Founders shared their commitment to judicial minimalism.”

In an email to Law&Crime, Hessick said the CNN interview was not the only time Gorsuch has publicly condemned the idea of judges making laws.

“I’d also note that this isn’t the first time that Justice Gorsuch has said something to this effect,” she wrote. “During his confirmation hearing he said that ‘judges would make pretty rotten legislators.’” He made the comment approximately 27-minutes into the linked video.

[image via via Chip Somodevilla/Getty Images]

Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.

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