The U.S. Supreme Court, Neil Gorsuch, and Originalism

The Senate Judiciary Committee commenced its hearings on the nomination of Judge Neil Gorsuch to fill the seat on the U.S. Supreme Court. The seat has sat empty since February 13, 2016. (For those who count, the number of days happens to be 401, but it might be an even 400, if Justice Antonin Scalia was alive after midnight.)

I won’t waste time on the nonsense associated with the 401-day gap. (Historians will give the Republican Senate no mercy, for sure.) Instead, I’m prompted by What Gorsuch Has in Common With Liberals, a piece which Professor Akhil Reed Amar wrote for the New York Times on March 18.

Professor Amar

The first Monday in October came and went earlier this week. With it the 2017 Supreme Court term began. I have some thoughts. Read on, s’il vous plait.

The Supreme Court exists as an anti-democratic institution, created by and through an anti-democratic Constitution. The people play no direct role in the selection of Supreme Court justices. Only because of the 17th Amendment to the Constitution—ratified 125+ years after the 13 states ratified the Constitution—do we elected directly United States Senators, who provide advice and consent with respect to individuals nominated to serve on the Court. That’s as close as we get to a direct role, for even in electing the president who nominates justices, votes mean more in one