I am the proud father of two wonderful sons who are autistic. As such, I admit I am more disturbed than most citizens that Judge Neil Gorsuch is said to be qualified to be on the Supreme Court because he is brilliant, has a sparkling resume, and has a conservative judicial philosophy that is within the mainstream of judicial thought.
I agree. But those characterizations are too narrow. Gorsuch’s 2008 decision regarding the Individuals with Disabilities Education Act, which effectively destroyed the opportunity for thousands of disabled children to receive the education a federal statute mandates they receive, demonstrated a lack of humanity that should disqualify him from the high court.
Judge Gorsuch’s 2008 written opinion that disabled children need only receive “merely” more than a de minimis education (virtually none) was so outrageous that it managed to unite a usually fractious Supreme Court in a unanimous ruling that rejected and eviscerated the decision.
By adding the word “merely” to an already erroneous standard, Judge Gorsuch effectively changed what was a harmful floor into what was a disastrous ceiling. The Supreme Court found that the 10th Circuit Court of Appeals decision, which relied on the 2008 opinion, effectively deprived disabled children of any meaningful education. The mandate of the IDEA statute that disabled children receive a “free appropriate” education had been ignored, as any sentient person would know. I doubt that if Judge Gorsuch’s children were making merely de minimis progress in school, he would think they were getting an appropriate education.
During his Senate confirmation hearings last month, Judge Gorsuch admitted his decision was wrong but claimed he was bound by precedent, which falsely implied that he was judicially powerless to change the prior decision in his circuit. Any judge who adheres to precedent, even if he thinks the precedent is wrong knowing he will now condemn future generations of disabled children to the irreparable harm already inflicted on disabled children, does not belong on any court in our system.
In addition, a judge who is deciding a certain way on the constraint of prior precedent writes a decision, often a concurring one, stating that he is joining in the decision solely because he feels constrained to do so by prior precedent. Judge Gorsuch did no such thing. His decision not only endorsed but also extended the restrictions of the prior decision.
When Judge Gorsuch — whose nomination the Senate Judiciary Committee will consider tomorrow — was being attacked at the Senate hearings for almost always siding against the “little guy,” he swore that he always puts his personal beliefs aside and decides solely based on the law.
But his decision on the IDEA statute proves that to be false. It was not the IDEA statute that determined that an appropriate education for disabled children is virtually no education. As the Supreme Court found, the statute clearly demands much more than merely de minimis progress.
It was Judge Gorsuch’s personal beliefs that for children like mine practically no education is appropriate. The decision revealed a flaw in his character that cannot be overcome by a lifetime of remarkable achievements.
In the notorious Citizens United decision, the Supreme Court held that corporations are people. Perhaps Judge Gorsuch did not realize that was just a legal fiction and took it as a directive to treat people, especially disadvantaged ones, like they were unfeeling inanimate objects.
David S. Gould is a practicing attorney and a former special counsel to former Chief Judge of the State of New York Sol Wachtler.