Chris Eisgruber, the President of Princeton University, recently expressed concern that universities are perceived “right or wrongly, as blue dots” in a politically divided America and thus said that universities must be concerned with political diversity. Some other university leaders have also cautiously suggested that the academy may put out the welcome mat for the right. Nevertheless, there is reason for doubting that political diversity will be increased or discrimination against conservatives and libertarians ended in the elite university setting. The causes of political imbalance and of discrimination are entrenched and are unlikely to change soon.
Supreme Court observers have expressed surprise and some have voiced criticism that Neil Gorsuch has been so assertive at oral argument and in his opinions so early in his tenure. Most justices have taken some time to decide how to approach this very important job. Justice Stephen Breyer in fact claimed he was “frightened to death” for his first three years.
But Gorsuch’s confident performance flows directly from his formal conception of law. Being a Supreme Court justice for a formalist is no different from being any other kind of judge and in particular no different from being the Court of Appeals judge Gorsuch had been for over ten years. Under this view, the lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think. Thus, as a formalist and experienced judge Justice Gorsuch was able to act forcefully from day one on the Supreme Court.
In contrast, for non-formalists like Justice Breyer, the work of the Supreme Court is fundamentally different from that of other judges because in many cases justices must act more like pragmatic statesmen rather than formalist jurists.
I am a strong opponent of Obamacare. But once I realized that a decision in King v. Burwell denying subsidies to people who purchase insurance under the federal exchanges would not help the cause of repealing Obamacare and might hurt it, my attitude towards the case changed. I felt much less politically invested in the issue and could more easily view it in an impartial manner.
Thus, I read with a relatively open mind the opinions by Chief Justice Roberts and Justice Scalia in the case. Although I am a formalist (albeit a soft formalist), I do believe that conflicting provisions in a statute can render it ambiguous and that purpose is permissibly used to resolve an ambiguity – two key premises of Chief Justice Roberts’s opinion. But in the end, I concluded that Justice Scalia had the better of the argument by a significant margin.