This article is adapted from the original list of 15 questions I posed during the nomination of Neil Gorsuch to the Supreme Court in February 2017.
Democrats never have any doubts about their court nominees. They know with certainty that once their picks are on the court, they will be willing to do anything in a real case to interpret the Constitution the way they see it. They will rule with the party’s preferred political outcomes regardless of past precedent or the plain meaning of the Constitution. There is no reason why conservatives cannot have that same confidence that GOP nominees will rule on the side of the original meaning of the Constitution and the 14th Amendment.
There is a long list of so-called originalist jurists who lecture in the abstract on the legal speaking circuit about the original interpretation of the Constitution. Yet few of them appear to abide by it in practice when such rulings will stick a spoke into identity politics. There really is only one justice who is willing to render an opinion based on his understanding of the Constitution as originally constructed, regardless of the political consequences, and that is Clarence Thomas.
We must convert theoretical originalism into practical originalism. Trump and conservatives spearheading the search for a nominee must get commitments from the candidates about clear constitutional questions that are relevant to the time we live in. No, they don’t need to answer about specific cases, but if they can’t categorically reject the notion of a constitutional right to transgenderism, to abortion, or to immigrate – and be willing to rule accordingly, regardless of recent decisions or lower court rulings – then their originalism has no value beyond a Federalist Society conference.
Here is a list of 16 questions on very relevant and consequential issues that should be asked in any interview of these candidates – whether by White House officials or by Republicans on the Senate Judiciary Committee. These are not tough questions. Anyone with a semblance of originalism should be able to easily answer them. We certainly know what every Democrat-appointed judge would say about these issues. We should have the same confidence about any supposed originalist.
1. Does the Supreme Court create “settled law”? Is it the final arbiter?
What the Founders envisioned as the weakest branch of government has now become a place where political discourse goes to die. Scalia pointed out as much in the Obergefell decision months before his death.
Is Obergefell truly “settled law”? Is any watershed ruling? Or is the concept of judicial supremacy something contrived in the 20th century that has since been used to pull issues out of public debate and put them squarely under the control of the legal profession?
Do you think rulings at the Supreme Court are better thought of “law” as that term is contemplated by Article VI’s Supremacy Clause, or are they better thought of as ad hoc judgments that merely lend persuasive authority to broader constitutional/political principles? What is the meaning of “supreme,” in Art. III, where “Supreme Court” is defined? Does it merely refer to a power to reverse lower court judgments and nothing more?
2. Does the concept of stare decisis violate the judicial oath of office? Do you support the prevailing doctrine of treating erroneous landmark decisions as settled law when they manifestly violate the Constitution or its amendments as originally adopted?
The source of the contemporary belief that the federal courts are the law of the land is Marbury, wherein John Marshall said that for courts not to block implementation of unconstitutional laws would violate judges’ oath of office. If the oath to the Constitution forces a judge to strike down a law duly passed by Congress and signed by the president (or passed by a state legislature and signed by a governor), isn’t it obvious that such an oath requires judges to overturn decisions of prior courts that unconstitutionally create law that never passed any elected branch?
3. Does Congress have full power over the jurisdiction of lower courts and the appellate jurisdiction of the Supreme Court?
Do you agree with Justice Thomas (Patchak v. Zinke) that “when Congress strips federal courts of jurisdiction, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it”? Do you believe there are any limitations on that power? Would you respect any limitations Congress places on the jurisdiction of the federal judiciary and be willing to overturn any lower court that violates Congress’ power?
4. Do you feel it is an obligation of the Supreme Court to grant certiorari or a stay for appellants when a lower court decision or injunction is built upon a prima facie “living and breathing Constitution” doctrine?
We are seeing a slew of lower courts blocking very consequential federal, state, or local laws and practices that are clearly built upon a desire to take sides in a controversial political question, yet the Supreme Court has been slow to react.
Religion in the public square
5. Do you believe that the Establishment Clause merely prevents the federal government from choosing an official state religious denomination and coercing individuals by force of official penalties “to worship God in any manner contrary to their conscience,” as Madison said?
Do you believe that public display of religious symbols or public prayer that in no way coerces anyone to worship violates the Establishment Clause? The majority opinion in the Bladensburg cross case last year seemed to imply that only a symbol “first established long ago” that could have some degree of secular meaning passes muster, but not a newer symbol or public prayer by a county council that is religious in nature, yet voluntary. Do you agree with Justice Thomas in his concurrence that only an individual who is “actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding” can sue for a violation of the First Amendment?
6. Do you believe there are any exceptions to the plenary power doctrine?
Since our Founding until the modern era, the courts have upheld the plenary power doctrine, which states that Congress — acting on behalf of the citizenry and national sovereignty — has the power to exclude or deport any foreign national or groups of immigrants for any reason. The courts, in what has been considered one of the most settled areas of law, declared that there is no right to judicial review to keep a foreign national in the country against the national will. Further, they have ruled that the process established by Congress through statute to deport an alien is due process. In recent years, however, the modern legal profession has chipped away at national sovereignty.
7. Do you believe Plyler v. Doe, which forced states to provide education benefits to illegal aliens, was erroneously decided?
Do you agree with Scalia’s dissent in Arizona v. United States (2012) that states have full power to echo, complement, and even expand upon federal restrictions against illegal aliens so long as such action is not explicitly prohibited by Congress? Do you agree with Scalia’s assertion that “the naturalization power was given to Congress not to abrogate States’ power to exclude those they did not want, but to vindicate it”?
8. Do you agree with the modern legal theory that illegal aliens have rights to citizenship for their children and other sundry rights to remain in the country?
Do you agree with contemporary activist legal theory that the 14th Amendment requires Congress to count illegal aliens in the census?
How should the Citizenship Clause of the 14th Amendment be understood? Does it extend an automatic and unqualified birthright citizenship to those who come here or remain here against the national will, even though settled case law considers illegal aliens to be standing outside our border?
Does the government have the right to detain illegals or criminal aliens with the full intent to deport them when their home countries aren’t cooperating? Do you believe Zadvydas was wrongly decided?
Given that sanctuary cities, unlike states like Arizona that complement federal law, defy an enumerated power of Congress, does Congress have the authority to cut off funding to those states?
9. What does the 14th Amendment really do?
The 14th Amendment was originally written with the intent of undoing the legal atrocities of chattel slavery and restoring inalienable rights to freed slaves. Since then, its provisions have been used as a blanket justification to codify a never-ending list of privileges into the body of constitutional case law. This modern understanding of the amendment has not only been used to create “rights” to abortion and same-sex marriage, but has also been used by leftist judges to manufacture “rights” to early voting, transgender bathrooms, and a host of other issues, as well as new rights for illegal aliens.
Do you believe, as the crafters of the 14th Amendment did, that the Equal Protection and Due Process clauses were “establishing no new right, declaring no new principle,” but rather were to reiterate and “to protect and enforce those which belong to every citizen”?
Do you believe that the authentic fundamental rights guaranteed by the Bill of Rights are enforceable through the Privileges and Immunities Clause of the 14th Amendment, as Justice Thomas does?
10. When Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972 prohibit discrimination based on sex, does that include what is now referred to as “gender identity” and “sexual orientation”? Or does it mean “sex” as was understood when the law was passed?
In other words, does this candidate believe that Justice Gorsuch wrongly decided the Bostock case in creating a statutory bar on transgender discrimination in employment law or other areas of law?
11. Do you believe any form of disparate impact — looking solely at unequal outcomes between racial groups — has any place in our discrimination laws?
Was Griggs v. Duke Power Co. wrongly decided when the court allowed plaintiffs to bring disparate impact claims under Title VII of the Civil Rights Act? If that is believed to be stare decisis, where do we draw the line? Does Section Two of the Voting Rights Act allow anyone to sue a state for a discrimination violation based on nothing more than a showing of disparate racial impact? Disparate impact reasoning has been a problem on a host of cases that should never have anything to do with race. Progressivists often rule that, because the impact of a law affects one racial group disproportionately, a law can be racist regardless of its intent or language.
12. What is your view of “substantive due process”?
Do you believe the 20th-century invention whereby judges manufacture rights under the 14th Amendment is “settled law?” Or is it “a legal fiction, an “oxymoron,” as Scalia has suggested? Are those words in the Constitution “only applicable to the process and proceedings of the courts of justice,” as Alexander Hamilton observed? Put simply, does the Supreme Court have the power to create rights, as it has done with privacy, abortion, contraception, and gay marriage, among others?
Voting rights and voter integrity
13. What rights do courts have to interfere in voter ID policies?
A pervasive trend in the federal courts — pending now in most circuits — is to overturn state voter integrity laws and mandate the methods, times, and procedures of state and federal elections. Evidently, according to some lower courts, there is a constitutional right to 20 days for early voting, to ballot harvesting, to an unlimited number of polling places in urban areas, to same-day registration, to an option for straight-ticket voting, to non-citizen voting, to voting without photo ID, to dead voters remaining on the voter rolls, and to the ability of one political party to maximize its electoral advantage through constant delaying of registration deadlines. Do you believe there is any basis for interventions from the federal courts absent a clear mandate from statute, given that states were supposed to control election law and all these cases can be heard in state court?
Eighth Amendment – Cruel and Unusual Punishment
14. Does the Eighth Amendment compel prisons to offer “sex change operations” to prisoners who request them?
This might sound like an obvious question to any Republican appointee, but given that the current Supreme Court allowed a Ninth Circuit ruling on this very premise to stand, it clearly is not that obvious.
Likewise, the Supreme Court has allowed a decision from the Ninth Circuit barring ordinances that prohibit homeless encampment on city streets to stand. Do you believe such laws violate the Eighth Amendment?
15. Could the Eighth Amendment bar the use of the death penalty for crimes that it was used for during the time of our Founding?
Over the past two decades, the high court has ruled that punishments in place since the Founding of the country violate the Eighth Amendment. In 2005 (Roper v. Simmons), the court ruled that capital punishment for juveniles is unconstitutional. In 2010 (Graham v. Florida), the court ruled that life without parole for juveniles is unconstitutional except for murder and then in 2012 (Miller v. Alabama) ruled that it’s unconstitutional even for murder. In 2008 (Kennedy v. Louisiana), the court ruled the death penalty as a punishment for child rape is unconstitutional. Would you overturn these decisions? Do you agree with what Justice Thomas wrote in Graham v. Florida, that “The Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment—specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights”?
16. What are the limitations on state powers to regulate individual behavior, mandate masks, and close businesses, under the guise of public health concerns? Did Jacobson v. Massachusetts (1905) properly decide the issue of mandatory vaccination, and if so, would that ruling extend even to a new, unproven vaccine? Also, can states use the police power of quarantine to issue shelter-in-place orders even to healthy people? Can they restrict travel from other states?