The nihilism of Neil Gorsuch

“Neil Gorsuch was ready to blow up the US housing market over a minorlegal violation.

The case in front of the Supreme Court was Collins v. Yellen (2021), which had at its center the Federal Housing Finance Agency (FHFA), an obscure body that oversaw hundreds of billions of dollars’ worth of transactions intended to stabilize the housing market after the 2008 recession. The FHFA isled by a single director whom only the president can fire “for cause.”The plaintiffs inCollins v. Yellen argued the president must have unlimited power to fire the agency’s head, citing the Supreme Court’s 2020 ruling in Seila Law LLC v. Consumer Financial Protection Bureau (CFPB).

But under the Collins plaintiffs’ arguments, it also followed that if the FHFA head was fired, every action the agency had taken since its creation in 2008 should be declared void — a truly radical prospect. That argument won very little favor from the justices. In June, the Court handed down a relatively modest opinion that gave President Joe Biden (and all future presidents) the power to fire the FHFA director without reversing the agency’s pastwork.

But Gorsuch would have none of it.

 In a partial dissent, Gorsuch complained that his colleagues were too spooked by the prospect of “unwinding or disgorging hundreds of millions of dollars that have already changed hands” (an underestimate of the amount of money at stake by several orders of magnitude). The proper approach, Gorsuch opined in Collins, was to declare the FHFA’s actions “void.”

If Gorsuch had gotten his way,13 years of work and hundreds of billions of dollars’ worth of transactions would have been unraveled, possibly delivering a shock to the mortgage-lending industry similar to that of the 2008 crisis — or even sending the world economy into a tailspin.

And yet, for Gorsuch, the potential consequences were irrelevant to how the Court should rule.

It wasn’t the only case this term where Gorsuch brushed aside worries about widespread disruption that could have done tremendous harm to millions of people.”  

“The lodestar of Gorsuch’s rhetoric about how judges should interpret the law is “textualism,” which he described in a 2020 book as the idea that judges’ sole task when interpreting legal texts is to determine “what an ordinary English speaker familiar with the law’s usages would have understood the statutory text to mean at the time of its enactment.””

“In reality, this method rarely lives up to such lofty promises. Many legal texts (including much of the Constitution) are ambiguous and can be fairly read in many ways. And what should a court do if it concludes that a century-old decision — one that millions of individuals and businesses may have relied on for decades — misread the text of a statute? Should 100 years of settled law be upended?

 Setting aside textualism’s flaws, Gorsuch’s record on the Supreme Court exposes just how spotty his application of the methodology is. Though his own opinions frequently preach the gospel of textualism, he’s shown no compunction about joining other justices’ opinions that treat the text of a statute as merely optional.”  

“Gorsuch is also perfectly willing to follow anti-textualist precedents that yield conservative results.”

“Gorsuch’s commitment to textualism can be little more than hot air. He is a selective textualist, who frequently evangelizes in favor of this method of interpretation but oftenabandons it in cases that reach a conservative result.”

“When Gorsuch has the chance to write a majority opinion, in other words, he typically shoots for the moon. His jurisprudence shows utter disregard for the norms of aninstitution he now belongs to, and for the work of generations to come up with a system of law that can manage a pluralistic society. It’s a revolutionary project, breathtaking in its audacity and nihilistic at its core.”

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