On Tuesday, Supreme Court Justice Ruth Bader Ginsburg delivered a subtle but stinging public smackdown to the Court’s newcomer, Justice Neil Gorsuch, one that highlighted their differing interpretations of the U.S. Constitution.
At LawNews.com, Colin Kalmbacher wrote that the exchange happened during oral arguments in the Gill v. Whitford redistricting case which could potentially deal a lethal blow to partisan gerrymandering in U.S. congressional districts.
Ginsburg is what’s known as a Living Constitutionalist, i.e., a person who believes that the Constitution is a document that must evolve and change along with the people who live in the Democracy enshrined within it. This often places her at odds with rigid, conservative “Originalists” like Gorsuch and the late Justice Antonin Scalia, who adhere to a fundamentalist interpretation of the Constitution as it was written in 1787.
Attorney Paul M. Smith was asserting to the Court — at Ginsburg’s request — that it must take a proactive role is ending partisan gerrymandering, which has allowed some states to effectively institute one-party rule.
“As Smith explained, Gorsuch tripped him up by bringing into play certain Constitutional minutiae,” Kalmbacher said, “which derailed the explanation into an opportunity for Gorsuch to claim Smith was making an argument different from the argument that was actually being made.”
“Isn’t that exactly what you’re trying to do?” Gorsuch prodded Smith.
“No,” Smith replied, sticking to the logic of his argument.
The two went back and forth before Gorsuch portentously intoned that he would like to discuss “the arcane matter, the Constitution,” implying that Smith’s argument is contrary to the values slated in the Constitution.
He then launched into a convoluted and showy bit of legalistic sleight-of-hand, arguing, “If you look at the Fifteenth Amendment, you look at the Nineteenth Amendment, the Twenty-Sixth Amendment, and even the Fourteenth Amendment, Section 2, says Congress has the power, when state legislators don’t provide the right to vote equally, to dilute congressional representation. Aren’t those all textual indications in the Constitution itself that maybe we ought to be cautious about stepping in here?”
“What Gorsuch was trying to communicate here is a disdain for using the courts to correct an alleged wrong when the Constitution theoretically provides avenues for redress,” Kalmbacher explained.
Smith replied that it is well within the court’s purview to use “the First Amendment and the Fourteenth Amendment to regulate the abusive management of state elections by state government.”
As Gorsuch’s tirade escalated and he and Smith appeared to be caught in a hopeless deadlock, Ginsburg asked, “Where did one-person/one-vote come from?”
The answer, as Kalmbacher noted, is a curt rebuke of Originalism. The right of the vote to every citizen is not enshrined in the Constitution itself, but “rather it was read into U.S. Constitutional law by Chief Justice Earl Warren via the case of Reynolds v. Sims. This, to be sure, is a complete renunciation of Gorsuch’s Constitutional worldview.”
Touché, Madame Justice.