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本帖最后由 choi 于 9-10-2019 14:45 编辑
Kyle Peterson, The High Court's Rocky Mountain Originalist; Trump's first justice discusses his new book, the dangers of administrative state, and why the Constitution's meaning never changed. Wall Street Journal, Sept 7, 2019 (in the column "The Weekend Interview" that appears every Saturday).
https://www.wsj.com/articles/the ... inalist-11567792378
Quote:
(a) in the interview (did not say when): "He is sitting in a wood-and-leather chair in his Supreme Court chambers. He's discussing originalism, the idea that Constitution's meaning is the same in 2019 as in 1788 [when it was ratified by three-fourths of the state legislatures; came into force in 1789]. 'Our founders deliberately chose a written constitution,' he says. 'It's writtenness a word invented by Gorsuch] was important to them. The rejected the English tradition of an unwritten constitution, because they wanted to fix certain things.'
(b) "In his new book, 'A Republic, If You Can Keep It' -- a mix of speeches, reflections and excerpts from his judicial opinions, to be published on Sept 10
(c) "After joining the court in 2017, Justice Gorsuch moved into Scalia's wood-paneled chambers. A portrait of James Madison hangs over a fireplace, and Leroy, a mounted elk from a Scalia's hunting trip, keeps watch over the clerks. Whats surprised Justice Gorsuch most was how little had changed since his own clerkship, with Justice Anthony Kennedy, in 1993-94. He recalls a young Justice Clarence Thomas [who assumed office on Oct 23, 1991 when Thomas was 43 years old] walking to the conference room. 'He's dragging one of those library carts—I'll show you one in a minute—stacked with paper, because back then everything was paper,' Justice Gorsuch says. Fast forward two decades: 'I'm walking out of my office for the first time to go to the conference room, and what do I see? Same man. Same library cart. Same stack of papers, because everything here is still done by paper. Nothing's changed.' In a few ways, however, Justice Gorsuch is a variation. A Denver native, he's the only member of the court born in a noncoastal state. He's the youngest justice, turned 52 last week. He may be the only Protestant. Although raised Catholic, he said in 2017 that he attends Episcopal services with his wife and two daughters. He declines to clarify or to talk religion: 'People would view that as tacitly admitting it has something to do with my day job, and I reject that.' * * * 'And I find faith in lots of places, but probably most of all in the cathedral [which is figurative speaking] of the Rocky Mountains. That's often where I feel closest to God.' For a judge, he writes in a conversational tone. Scalia avoided contractions, which he once called infra dignitatem -- [Latin for] beneath dignity, * * * Justice Gorsuch doesn't [this is a contraction] hesitate to deploy them, starting in the first paragraph of his majority opinion. 'That's just the way I write,' he says, perhaps a bit bewildered at the question. 'There's no self-consciousness to it. I think good writing doesn't need to be legalese, doesn't need to be impenetrable -- that doesn't persuade me,' But as for being colloquial: 'Good writing is more like what we speak than it is what lawyers sometimes aspire to.' He hasn't joined the court's 'cert [short for 'certiorari'] pool,' through which most of the justices divide among their clerks the task of analyzing petitions for appeal. He's glad that the pool exists -- a thorough process that creates a memo on each petition filed -- but also believes in having some eyes outside it. 'There are 80,000 people a year who want this court to hear a case,' he says. 'We only hear about 70. I don;t think it's asking too much of me to spend a little bit time looking at those and doing it in-house, in our chambers, the old-fashioned way.' Another them of his book is the separation of powers as a bulwark of liberty. People know the Bill of Rights [the first ten amendments to the US Constitution], Justice Gorsuch says, but as with any contract, 'what makes it good is an enforcement mechanism, and that's what separation of powers is-- it's our enforcement mechanism for these promises. The Framers [of Constitution] made it hard to pass legislation, so that laws 'would be relatively few in number, clear, and the product of widespread social consensus.' But has led to a creeping [little by little] encroachment on legislative power. When the executive branch effectively becomes a lawmaker, he argues, 'One of two things happens.' Either 'you elect a king [in US, only a president can issue executive orders which are good when it does not contract existing laws or there is no such law to contradict] ,' or 'the king can't even control the people who do make the laws,' in which case, 'nobody controls them.'
(d) "He [Gorsuch] wonders why courts that have judicial power under the Constitution [specifically Article III; Article II is about Congress. And Article I, about executive branch, which has its own administrative law judge (ALJ), appointed by agency heads for terms (as opposed to for life for Article III judges) whose decisions may be appealed to United States Circuit Court of Appeals. But US Supreme Court ruled in the 1997's Auer v Robbins that standard of review should be deferential, heeding the expertise of agency regulations and of ALJs. Congress enacts laws, but authorizes agencies in executive branch to fill in the blank. (An example: an ALJ ruled in favor of Xiafen "Sherry" Chen, and federal government appealed the ruling to agency heads, 3 commissioners.) But Gorsuch disagrees about deferential review.] * * * One twist is that Scalia spent years defending deference [to agency decisions] as a practical judicial restraint. 'Even Homer nodded,' Justice Gorsuch says. 'Justice Thomas tells a wonderful story about sitting with Justice Scalia, and somehow Auer comes up. ' he recounts. 'Scalia asks, "Who wrote that terrible opinion?" And Justice Thomas says to Scalia, "Well, you did, Nino." ' Justice Gorsuch has a down-to-earth manner. He has talked about raising chickens , along with a goat named Nibbles, while his daughters were in 4-H balck on Colorado. On one speech included in the book he says America has a judiciary of 'honest black polyester [the fabric that a robe is made of]. When he joined the 10th US Circuit Court of Appeals [based in Denver], someone asked if he owned a robe. 'I was not born with a robe. I do not have a robe.Why would I have a robe?' he says. A court staffer pointed him to a uniform-supply shop. 'I'm a frugal man,' he says. 'The standard choir outfit is a pretty good deal! So that's what I bought, and that's what I still use. It's a little worse for wear [meaning use; as in wear and tear].' One of the book's funniest lines coms on Judge Gorsuch's first day, when he trips while stepping up to the bench. 'Neil,' his wife advises,' You have to lift your hem as you climb stairs.' He emphasizes the justices' camaraderie. Although the court takes only 'the 70 hardest cases a year,' it rules unanimously in about 40% of them. That does not happen magically,' Justice Gorsuch says. 'Get nine people to agree on where to go to lunch.' He credits such consensus t 'hard work, collegiality and mutual respect.' When justices met in conference [every Tuesday when Supreme Court is in session] or to hear cases, they start with a round robin f 36 handshakes. 'Its a beautiful gesture,' Justice Gorsuch says. ''We eat lunch together. * * * We don't talk about business. We talk about family. We talk about life.' |
发表于 9-9-2019 14:58:16
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