Neil Gorsuch and the Uses of History

The New Yorker Radio Hour

WNYC Studios and The New Yorker

Politics, Arts, News, Wnyc, Books, David, Storytelling, Society & Culture, Yorker, New, Remnick

4.2 • 6.2K Ratings

🗓️ 5 September 2017

⏱️ 24 minutes

🔗️ Recording | iTunes | RSS

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Summary

We have yet to learn just how closely the views of the Associate Justice of the Supreme Court, Neil Gorsuch resemble those of the late Justice Antonin Scalia, a staunch conservative and a standard-bearer for the legal philosophy known as originalism. Originalists claim to interpret the Constitution by relying on its words and on the contemporary writings of the Constitution's framers. The New Yorker staff writer Jill Lepore, a professor of history, says that Gorsuch has been candid about the limitations of historical thinking. But she also notes that liberal jurists, for their part, have become more engaged in historical research to bolster their decisions, and thus are “out-originalizing originalists.” Plus: Alexa is the voice-recognition program in Echo, Amazon’s speaker device. It sits in your house, always on, listening for commands to look up information, play media on your computer, or order stuff from Amazon. The New Yorker’s Sarah Larson tests out Alexa, and finds it to be like “2001: A Space Odyssey” crossed with “The Golden Girls.” This episode originally aired on September 30, 2016

Transcript

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0:00.0	I'm excited to be having a conversation with someone.
0:10.0	When they have that revelation, it's making sure.
0:14.0	That maybe looking at this case, it could be an interesting process.
0:18.0	Okay.
0:19.0	From One World Trade Center in Manhattan, this is the New Yorkorker radio hour a co-production of w nyc
0:25.6	studios and the new yorker welcome to the new yorker radio hour i'm david remnick in a few weeks
0:34.7	the supreme court will be back in session and their docket includes some of the defining issues at the moment, redistricting, collective bargaining, and immigration.
0:44.6	Donald Trump's appointee to the court, Neil Gorsuch, was sworn in at the end of the court's previous session in the spring.
0:52.0	He filled the seat of Antonin Scalia, who was revered on the right as a
0:56.1	leader and innovator of conservative jurisprudence. The judges officially don't make decisions
1:02.2	based on their personal politics. Instead, conservatives and liberals on the court tend to divide
1:08.0	along a different line, how they view history.
1:11.8	That's according to my colleague Jill Lepore.
1:14.2	She's a staff writer at the magazine and a professor of history at Harvard.
1:18.1	A while back, she wrote a terrific essay about the Supreme Court, history, and law.
1:23.7	Jill, I think you should start by describing what you call the history test. Not the kind of test you give undergraduates, but explain what that history test is on the Supreme Court.
1:33.3	Sure. Well, unlike the kind of test you give to undergraduates, this one is very difficult to pass because it's quite vague and uncertain.
1:41.2	But the court, in trying to make judicial decisions, has several different ways
1:46.7	it might use history. One is to look to precedent, that is, the body of earlier legal decisions.
1:53.6	Everyone's going to do that to one degree or another. But then there's a broader deference
1:59.2	to political, cultural, and social history.
2:03.5	And justices sometimes talk about this as a history test.
	...

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