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Nicolais: Justice Neil Gorsuch, evangelizing for the separation of powers

Returning to his home state, Supreme Court Justice Neil Gorsuch offered sage advice for people from all political stripes

I did not miss the irony as I sat in an elegant ballroom listening to a U.S. Supreme Court justice deliver an eloquent defense of the separation of powers on Presidents Day.

Last week, Justice Neil Gorsuch returned to his home state for a few days and took an hour to visit with a small gathering of a couple hundred people and sign copies of his recent book, “A Republic, If You Can Keep It.” 

Mario Nicolais

Falling between the auditorium-busting crowds that turned out for Bernie Sanders on Sunday and President Donald Trump on Thursday, the Gorsuch event didn’t include screaming supporters, campaign paraphernalia or a sea of political placards. Instead it had neatly lined rows of ballroom chairs filled with lawyers in suits.

And it had a profound and important message.

Presented via a conversational format between Gorsuch and current 10th U.S. Circuit Chief Judge Tim Tymkovich, similar to the format employed so wonderfully by First Lady Michelle Obama a few years ago, Gorsuch spoke to his audience in a powerful but intimate and engaging manner.

Most prominently, Gorsuch urged his listeners to “evangelize for the separation of powers.” As a jurist grounded by an originalist theory of constitutional interpretation, Gorsuch begins all legal analysis with the concrete words of the U.S. Constitution.

It is no accident that the first three articles contained therein divide the powers of government into three separate branches – the legislative, the executive and the judiciary.

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Yet as Gorsuch explained, we have become too accustomed to branches encroaching on the function of each other. 

For example, the growth of the imperial presidency has gradually sapped much of the law-making authority from the legislative branch, particularly in recent decades.

The effect creates a government-by-administrative-agency scenario with ever-changing laws so burdensome that compliance becomes impossible. Look no further than the voluminous regulations promulgated each year the Centers for Medicare & Medicaid Services

Anyone decrying the dire dangers of electing Trump, Sanders or any other presidential candidate would be better served attempting to reinvigorate the checks and balances put in place by our nation’s founders. Trading one version of tyranny for another only further adulterates that system.

Similarly, Americans have increasingly turned to courts to enact outcomes denied by the other branches. But this ignores the fundamental charge of the judiciary to remain neutral arbiters of laws enacted by the legislature and enforced by the executive. A usurper in a robe is little different than one behind the Resolute desk.

Fortunately, our country still has many extraordinary individuals working together in public service, including on the Supreme Court. 

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During the hour he spoke, Gorsuch relayed a collegial anecdote about Justice Ruth Bader Ginsburg. When Ginsburg arrived at the Supreme Court, Gorsuch had been clerking for her predecessor, Justice Byron White.

At the time, Gorsuch delivered Ginsburg a copy of White’s clerkship manual. When Gorsuch made the bench, Ginsburg returned an “improved” version.

Although Ginsburg and Gorsuch may be ideologically adverse – just as she was with his predecessor and her good friend Justice Antonin Scalia – both maintain strict reverence for the rule of law.

To me, there is no better example than Ginsburg’s recent comments on the Equal Rights Amendment. An icon in the pursuit of women’s equality, Ginsburg signaled that she could not look past deadlines for ratification put in place by Congress just to achieve an outcome she worked a lifetime pursuing.

That is precisely the selfless dedication to the separation of powers Gorsuch advocated on Presidents Day. 

Over the next year, and likely many that follow, the political divide in our country seems destined to grow. The cure won’t be found consolidating power in the vision of one candidate or another. Instead it rests in our country’s founding documents and the separation of powers they created.


Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq


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