Neil Gorsuch and the Search for the Supreme Court Mainstream

The declaration Tuesday night by Senator Chuck Schumer, the leader of Senate Democrats, that “the burden is on Judge Neil Gorsuch to prove himself to be within the legal mainstream” poses a crucial question: Where is today’s mainstream?

In the coming confirmation battle over President Trump’s nomination of Judge Gorsuch to the Supreme Court, we’re about to find out.

The New York senator’s implied threat is a resonant one, harking back to the titanic battle 30 years ago over President Ronald Reagan’s nomination of Robert H. Bork. Judge Bork was “out of the mainstream” and would “turn back the clock” on civil rights, his opponents charged as they succeeded in marshaling a bipartisan coalition that defeated his nomination with 42 votes in favor and 58 against.

By framing the goal as preserving the constitutional mainstream, the Bork opposition’s success necessarily defined the mainstream that existed in 1987. And the success seemed to go deeper, not only identifying but ratifying certain principles as being correct and beyond debate: that contrary to Judge Bork’s view, the Constitution encompasses a right to privacy that includes abortion; that the First Amendment protects much more than the political speech that Judge Bork claimed as its only legitimate focus; that the Civil Rights Act of 1964 is valid in all particulars. Judge Bork, in a notorious article in The New Republic, had denounced the public accommodations provision of the law as based on “a principle of unsurpassed ugliness,” namely that government can override personal choices and “coerce you into more righteous paths.”

But just as the Mississippi River changes course over time and redefines the boundary between Mississippi and Louisiana, the constitutional mainstream isn’t static. No participant in the Bork battle could plausibly have maintained, for example, that the Second Amendment protects an individual right to own a gun, as the Supreme Court would decide two decades later. Few if any anticipated the degree to which the First Amendment’s protection for commercial speech would be turned into a powerful deregulatory tool.

The notion that a Supreme Court majority would invoke the Constitution to cut the heart out of the Voting Rights Act of 1965 would have been dismissed out of hand. The idea that the Commerce Clause was insufficient to empower Congress, as an aspect of regulating a national market for health care, to require people to acquire health insurance, would have seemed bizarre; the court had not invalidated a federal law on Commerce Clause grounds since the 1930s. And only a year before the Bork nomination, the Supreme Court rejected as “facetious” the claim that the Constitution prohibits criminalizing consensual gay sex.