美国国家公共电台 NPR Judge Gorsuch's Originalism Contrasts With Mentor's Pragmatism

 

DAVID GREENE, HOST:

When the country elects a Republican president and there's an opening on the U.S. Supreme¹ Court, it's expected the president will nominate a conservative to fill that seat. The question is, what kind of conservative? There are different kinds of conservative judges, from the pragmatists to the originalists. Judge Neil Gorsuch, President Trump²'s nominee³, is a self-proclaimed originalist.

NPR legal affairs correspondent Nina Totenberg reports on what exactly that means.

NINA TOTENBERG, BYLINE⁴: The late Justice Antonin Scalia spent decades on the Supreme Court promoting originalism which he defined this way.

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ANTONIN SCALIA: The Constitution that I interpret and apply is not living but dead or, as I prefer to call it enduring. It means today not what current society - much less the court - thinks it ought to mean but what it meant when it was adopted.

TOTENBERG: Judge Gorsuch, who would succeed Scalia if confirmed, has a similar but less blunt way of putting it. In a 2016 speech, he declared that under our Constitution, while legislators should consider policy questions and moral convictions in shaping the law, judges should do neither. In interpreting the Constitution, he said judges should look to the text and meaning of the Constitution as it was understood when it was written in 1789.

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NEIL GORSUCH: The judges should instead strive to apply the law as they find it, focusing backwards⁵ not forwards.

TOTENBERG: Todd Gaziano of the conservative Pacific Legal Foundation explains originalism this way.

TODD GAZIANO: The text is the best evidence. And so if a phrase in the Constitution is unclear, we look to how that phrase was used in other contexts. Was it a term of art that people understood at that time? Or even occasionally, we look at dictionaries of the time.

TOTENBERG: At the announcement of his nomination⁶ last week, Judge Gorsuch cited as his first mentor⁷ in the law one of the justices he clerked for, Byron White. White, however, was a very different brand of conservative. He was a pragmatist, observes Allan Ides who also clerked for White and is now a professor at Loyola Law School in Los Angeles.

ALLAN IDES: Originalism is kind of odd when you think about it. It's I don't want the judge to think about the consequence of this decision, just about what would have been done 200 years ago. It's a peculiar⁸ theory that I think the public is attracted to because it sounds so simple and so true, but it's completely false.

TOTENBERG: Ides notes that Justice White was one of two dissenters¹⁰ from the Supreme Court's Roe¹¹ v. Wade¹² abortion¹³ decision. But he looked forward as well as back.

IDES: And if you read his opinion, part of it is very pragmatic - I don't think this is going to work; it goes way too far; it's going to have these consequences. Pragmatism - it can embrace a wide range of points of view. It's just that it's based on reality. So my objection to Gorsuch is I don't think he thinks broadly enough.

TOTENBERG: Conservatives, of course, aren't the only judges who look to the original meaning of the Constitution. Liberal judges do that, too. And they look at the text and structure as well. Indeed, when the Supreme Court ruled 5-4 that the Constitution guarantees an individual right to own a gun, both the majority opinion, written by Scalia, and the dissent⁹ cited historical records to make their case. Ides contends that both used history in an adversarial way to advance very different arguments.

IDES: But they're both plausible¹⁴ interpretations¹⁵ of the history and of the text. It just shows that it's kind of an empty technique. It pretends to be something it isn't.

TOTENBERG: He sees the conservative agenda on the court over the last 10 to 20 years as aimed at limiting the power of the federal government. And he adds that for the Trump administration and its aggressive use of federal and executive power, that could be bad news. If so, that would be the ultimate irony¹⁶.

Nina Totenberg, NPR News, Washington.

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1 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

2 trump   

n.王牌，法宝；v.打出王牌，吹喇叭

参考例句：

• He was never able to trump up the courage to have a showdown.他始终鼓不起勇气摊牌。
• The coach saved his star player for a trump card.教练保留他的明星选手，作为他的王牌。

3 nominee   

n.被提名者；被任命者；被推荐者

参考例句：

• His nominee for vice president was elected only after a second ballot.他提名的副总统在两轮投票后才当选。
• Mr.Francisco is standing as the official nominee for the post of District Secretary.弗朗西斯科先生是行政书记职位的正式提名人。

4 byline   

n.署名；v.署名

参考例句：

• His byline was absent as well.他的署名也不见了。
• We wish to thank the author of this article which carries no byline.我们要感谢这篇文章的那位没有署名的作者。

5 backwards   

adv.往回地，向原处，倒，相反，前后倒置地

参考例句：

• He turned on the light and began to pace backwards and forwards.他打开电灯并开始走来走去。
• All the girls fell over backwards to get the party ready.姑娘们迫不及待地为聚会做准备。

6 nomination   

n.提名，任命，提名权

参考例句：

• John is favourite to get the nomination for club president.约翰最有希望被提名为俱乐部主席。
• Few people pronounced for his nomination.很少人表示赞成他的提名。

7 mentor   

n.指导者，良师益友；v.指导

参考例句：

• He fed on the great ideas of his mentor.他以他导师的伟大思想为支撑。
• He had mentored scores of younger doctors.他指导过许多更年轻的医生。

8 peculiar   

adj.古怪的，异常的；特殊的，特有的

参考例句：

• He walks in a peculiar fashion.他走路的样子很奇特。
• He looked at me with a very peculiar expression.他用一种很奇怪的表情看着我。

9 dissent   

n./v.不同意，持异议

参考例句：

• It is too late now to make any dissent.现在提出异议太晚了。
• He felt her shoulders gave a wriggle of dissent.他感到她的肩膀因为不同意而动了一下。

10 dissenters   

n.持异议者，持不同意见者( dissenter的名词复数 )

参考例句：

• He attacked the indulgence shown to religious dissenters. 他抨击对宗教上持不同政见者表现出的宽容。 来自《简明英汉词典》
• (The dissenters would have allowed even more leeway to the Secretary.) （持异议者还会给行政长官留有更多的余地。） 来自英汉非文学 - 行政法

11 roe   

n.鱼卵；獐鹿

参考例句：

• We will serve smoked cod's roe at the dinner.宴会上我们将上一道熏鳕鱼子。
• I'll scramble some eggs with roe?我用鱼籽炒几个鸡蛋好吗？

12 wade   

v.跋涉，涉水；n.跋涉

参考例句：

• We had to wade through the river to the opposite bank.我们只好涉水过河到对岸。
• We cannot but wade across the river.我们只好趟水过去。

13 abortion   

n.流产，堕胎

参考例句：

• She had an abortion at the women's health clinic.她在妇女保健医院做了流产手术。
• A number of considerations have led her to have a wilful abortion.多种考虑使她执意堕胎。

14 plausible   

adj.似真实的，似乎有理的，似乎可信的

参考例句：

• His story sounded plausible.他说的那番话似乎是真实的。
• Her story sounded perfectly plausible.她的说辞听起来言之有理。

15 interpretations   

n.解释( interpretation的名词复数 )；表演；演绎；理解

参考例句：

• This passage is open to a variety of interpretations. 这篇文章可以有各种不同的解释。 来自《简明英汉词典》
• The involved and abstruse passage makes several interpretations possible. 这段艰涩的文字可以作出好几种解释。 来自《现代汉英综合大词典》

16 irony   

n.反语，冷嘲；具有讽刺意味的事，嘲弄

参考例句：

• She said to him with slight irony.她略带嘲讽地对他说。
• In her voice we could sense a certain tinge of irony.从她的声音里我们可以感到某种讥讽的意味。