Judge Neil Gorsuch of the Tenth Circuit Court of Appeals is by virtually every account a stellar jurist. His writings are now being mined, by supporters and opponents alike, for evidence of his commitment to judicial restraint and the separation of powers.
That evidence is not hard to find. In an address delivered on April 27, 2016, Gorsuch spoke of “the great project of Justice Scalia’s career,” namely to expound “the differences between judges and legislators.”
Was he or wasn’t he? An enormous number of words have been written to contest the question of whether Carl Schmitt (1888-1985) was an avid supporter of Hitlerism and totalitarianism.
I am grateful to the other contributors to this forum for enlarging our discussion of Carl Schmitt. They have not persuaded me to temper my own conclusion: Schmitt offered a great deal of poison, which is not rendered more palatable by his large admixtures of well-aged snake oil. Perhaps the best way to explain my obduracy is to take up Aurelian Craiutu’s suggestion that Schmitt critics must reckon with his postwar book, Nomos of the Earth (1950). The modern state, Schmitt says there, was the answer to the “European civil war” provoked by the Reformation. The Peace of Westphalia not only…