Gorsuch’s Clarion Call

A Supreme Court concurrence that rebukes both ideological wings and, as Ginsburg did before him, warns what happens when judges chase outcomes

What may be the most interesting piece of writing in the Supreme Court’s decision striking down President Trump’s tariffs did not come from the majority. It came from Justice Neil Gorsuch’s concurrence — a piece that reads less like a doctrinal analysis and more like a constitutional sermon, a clarion call for internal consistency directed at six of his eight colleagues across the ideological spectrum.

His rebukes of Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh on the right, and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson on the left, are remarkable precisely because they are not partisan. Gorsuch accuses all six of wearing different hats depending on the policy outcome they prefer, shifting their views of the major questions doctrine to suit the moment. As much as his opinion venerates the sacred role of Congress, it is also a homepage to internal consistency — an implicit recognition that principled interpretation sometimes leads to results a justice may not personally want.

The Untied States Capitol at night

I found myself thinking about my own discomfort with District of Columbia v. Heller. I believe deeply in the need for stronger gun regulation. But I also know Justice Antonin Scalia was right that the Second Amendment is not limited to a “well-regulated militia.” I may believe that this leads to outcomes that are disastrous or perverse, outcomes that conflict with the Constitution’s call to protect life, liberty, and the general welfare. But the words say what they say. And amendments exist precisely to create exceptions, clarifications, or additions to the original text. In that conflict, the Second Amendment wins. I wanted a different outcome in Heller, but fidelity to the text requires acquiescence. My position has shifted: If we want a different world, Congress and the states must amend the Constitution to reflect modern realities. Too often, out of expediency, we turn to the Supreme Court to deliver outcomes that should be delivered by the other political branches.

This is why Gorsuch’s consistency stands out. He is not immune from results-oriented reasoning — no justice is — but he often lands on the right side of principle. His majority opinions and fiery dissents in cases involving Indigenous treaties are a perfect example. As his colleagues twist language to reach outcomes that are practical or that they prefer, he insists that the United States owes tribes exactly what it promised, nothing less. He is not defending policy; he is defending the rule of law.

As someone who believes in a robust and active government, I am no admirer of Gorsuch’s libertarian streak. But when it comes to consistency, I find him admirable — sometimes more admirable than the justices who deliver the pragmatic results I personally want. The law should not be about my preferences or anyone else’s. The law should be what it is. And we have mechanisms to change every word of it if we choose.

What separates thriving democracies from fragile ones is the rule of law — a system designed to protect rights and ensure predictability. You cannot price for inconsistency. Who would invest in a country where the legal ground can be pulled out from under you? Look no further than ExxonMobil’s disinterest in returning to Venezuela. Who would protest in a country where the definition of protected speech shifts with the whims of a single leader?

Gorsuch’s concurrence is not just a doctrinal statement. It is a gentle but firm reminder that Congress, for all its dysfunction, holds the powers it does for a reason. The collective wisdom of the people, expressed through their legislature, tempers impulse and produces durable change. His opinion is a tribute to that design — and a quiet admonition to his colleagues that the Court’s legitimacy depends on applying its own doctrines with the same consistency it demands of the political branches through concepts like judicial estoppel.

What I hope Gorsuch’s colleagues do is get past their defensiveness and actually listen. His concurrence is not an attack; it’s an invitation. If the Supreme Court steps out of the business of cleaning up statutes to address practical concerns or to align the law with the will of the moment, the burden shifts back where it belongs: To Congress and the states. And that shift would, at least in part, produce lasting change — see Roe v. Wade and Dobbs v. Jackson Women’s Health as examples of where the opposite approach has created serious problems — and reduce the legislative dysfunction we all lament.

Justice Ruth Bader Ginsburg criticized Roe for basing abortion rights on a right to privacy rather than on equal protection and women’s equality, creating a flimsy doctrine and styming legislative progress that could have resulted in lasting change.

Right now, members of Congress can spend two to six years doing virtually nothing and still be reelected. They can avoid hard votes, dodge accountability, and rely on courts to fix the gaps. In a world where the judiciary refuses to twist statutory text to rescue Congress from its own silence, that dynamic changes. Our votes would have to align with performance. Legislators would have to legislate. And the public would have to hold them to it.

As much as we criticize Congress, the courts, the Executive Branch, and even litigants have been enablers of this problem. When the judiciary stretches statutes to achieve outcomes Congress never enacted, it relieves Congress of the responsibility to govern. When presidents push the boundaries of vague delegations, they train Congress to avoid clarity. And when litigants ask courts to deliver policy victories that should come from the political branches, they reinforce the cycle.

Gorsuch’s point — and it is a powerful one — is that the Constitution’s design forces accountability. If the Court stops smoothing over the rough edges of legislative inaction, the system begins to work the way it was intended. Congress becomes the arena for major policy debates. The states become laboratories of democracy. And the judiciary returns to its proper role: Saying what the law is, not what it should be.

A tempting counterargument is Brown v. Board of Education — the familiar story that Congress wouldn’t act, states were openly violating rights, and the Court had to step in to fix what the political branches refused to confront. It’s an emotionally satisfying narrative, but a thin one. It treats Brown as a kind of deus ex machina, a moment when a heroic Court swooped in to resolve an unsolvable plotline.

But Brown didn’t invent anything. It simply forced the states, the Executive Branch, and the judiciary itself to stop pretending the Fourteenth Amendment didn’t mean what it said. After nearly six decades of evasion, the Court finally enforced the constitutional command Congress had written in 1868.

And far from being passive, Congress had been the more forceful actor: It passed the Civil Rights Act of 1866, the Enforcement Acts of 1870 and 1871, the Ku Klux Klan Act of 1871, and the Civil Rights Act of 1875. The failure was not legislative silence — it was judicial abdication. Brown does not rebut the point; it proves it.

I am glad the Court reached the right outcome here, striking down what anyone who can read plain English could see were unconstitutional tariffs. I just wish the path had not been so tortured. A case this straightforward should not require a maze of concurrences, caveats, and doctrinal hedging. When the law is clear, the Court should be clear. And when the Constitution assigns a power to Congress, no amount of interpretive creativity or judicial gymnastics should allow a President to take it for himself.