Opinion: Justice Neil Gorsuch ‘Warning’ Biden Shows He Thinks He’s Untouchable

Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno

As part of promoting his new book, Overruled , in which he criticizes excessive government regulation, Justice Neil Gorsuch was asked on Fox News about his views of the proposed reforms to the Supreme Court proposed by President Biden . In response, Gorsuch warned Americans to “be careful” about making changes to the judiciary.

We should take that warning seriously, not because reforms to the Supreme Court threaten an independent judiciary, but because the fact that Gorsuch felt free to issue it shows the real dangers of an unchecked Supreme Court.

Two disclosures here. As I have previously stated, I once interviewed for a judicial clerkship with Justice Thomas when he was still on the D.C. Circuit Court of Appeals. I had been taken with his personal story of accomplishment and found him to be personable and charismatic. Justice Gorsuch and I once worked at the same law firm where I found him to be an extremely kind-hearted colleague and an exceptionally sharp legal mind and writer. These two justices are a generation apart and have very different histories.

For one thing, Thomas was literally silent during oral arguments for a decade before breaking his silence with a joke, followed by another year of silence. Gorsuch, has been an aggressive questioner from the start, perhaps reflecting his time in private practice as a civil litigator. But whatever their difference in the courtroom, their actions outside the courtroom reflect a troubling state of mind among the justices—most notably the conservative ones.

Criticism of Justice Gorsuch’s remarks were immediate and ran the spectrum of podcast host Jack Hopkins telling Gorsuch he should be careful about his arrogance, and former Justice Department official Harry Litman questioning why Gorsuch was even giving an interview on Fox at all. Both criticisms illustrate the mindset of the conservative justices who make up the majority on the high court.

Let’s start with the fact that Gorsuch’s book is about his criticism of federal agencies, and that that very issue came before him this term as he joined in the decision striking down the deference given to federal agency expertise that had stood since 1984 .

Gorsuch apparently feels free to express his views about federal agencies in writing, for a purported half-million dollar advance , despite hearing that very issue as a sitting justice. Gorsuch’s mind-set on what he can say is also shown in the supposed caveat he gave before delivering his warning about the proposed Supreme Court reforms.

Said Gorsuch : “I’m not going to get into what is now a political issue during a presidential election year. I don’t think that would be helpful.”

His statement is remarkably tone-deaf on the fact that his mere characterization of the proposed reforms as a “political issue” is a political statement. One also wonders when the justice believes it would be helpful for a Supreme Court justice to weigh in on political issues.

Justice Samuel Alito may provide some guidance on that given his shaking his head at President Obama during a State of the Union address and mouthing at the president “not true,” and his apparent passivity in allowing his wife to fly flags symbolizing sympathy with the extreme right at his houses. Alito also gives interviews and even writes opinion pieces for the Wall Street Journal expressing his conservative views.

Another reminder of the apparent “we are untouchable” mindset of the conservative justices is the torrent of reveals about Justice Clarence Thomas’s acceptance of extraordinarily lavish gifts and benefits from billionaire Harlan Crow .

Mostly, Thomas has failed to report these on his financial disclosures or amended his disclosures after exposure by the press. Nor did he see any need to recuse himself from cases involving the Jan 6 election interference issues despite his wife expressing support for questioning the validity of the 2020 election results.

The absolute nature of the justices’ power is not set in the Constitution, but rather flows from the failure of other branches of government as well as their own sense of grandeur. The failed financial disclosures of Justice Thomas could be investigated by both the Justice Department as well as Congress (Congress has made efforts about Thomas and Alito ), and legislation could be passed to impose an enforceable code of ethics upon the high court so that they would not self-police.

While Justice Gorsuch may truly believe that the American people should be warned that changes to the federal judiciary may affect its independence, it’s his confident public expression of his views on a matter that is almost surely going to come before him if any reform is enacted that serves as the real warning. It’s warning that the sense of absolute power is not limited to only one justice but several.

Moreover, it’s not a generational thing. Justice Thomas was appointed in 1991—this October will mark his 33 ^rd year as a sitting justice making him only three years short of the longevity record held by Justice William O. Douglas whose reign lasted 36 hears and spanned World War II, the Korean War, and the Vietnam War. Thomas is 76 now. Justice Alito is 74, and has served on the high court since 2006. In contrast, Gorsuch, like his Young Turk colleagues Amy Coney Barrett and Brett Kavanaugh, is in his fifties. This group of three will continue to shape American law and society for a generation. That’s too long.

Whatever the personal characteristics of individual justice may be, Americans would do well to remember the adage often attributed to the 19 ^th Century English historian Lord Acton who is believed to have said: “Power tends to corrupt and absolute power corrupts absolutely.” Gorsuch’s warning reflects the consequences of failing to check the power of the Supreme Court. That is on us. We cannot depend on the justices to reign in themselves.

Read more at The Daily Beast.