Mr. Perry’s is an invitation I would run from fast. If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty. Besides, the law of unintended consequences being what it is, judicial tinkering with legislation is sure only to invite trouble.
(Dissenting Opinion [joined by Justice Clarence Thomas], Perry v. Merit Systems Protection Board, 582 U.S. ____ [2017])
Note from KBJ: This opinion by Justice Gorsuch should be comforting to conservatives, or at least to those conservatives who believe in judicial modesty. The quotation shows that Justice Gorsuch is committed to judicial deference to the legislature. Elsewhere in the opinion, he writes:
- "[T]he business of enacting statutory fixes [is] one that belongs to Congress and not this Court."
- "I would decline Mr. Perry's invitation and would instead just follow the words of the statute as written."
- "Beyond its claim about the statute's purpose, the Court offers little in the way of a traditional statutory interpretation. It does not explain how the result it reaches squares with the statute's text and structure, or grapple with the arguments presented here on those counts."
- "At the end of a long day, I just cannot find anything preventing us from applying the statute as written—or heard any good reason for deviating from its terms."
- "Respectfully, Congress already wrote a perfectly good law. I would follow it."
Please, God, let us have one more Neil Gorsuch.
