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Judge Gorsuch and the Independence Institute

Judge Gorsuch and the Independence Institute

The Independence Institute has specific reason to celebrate the nomination of Judge Gorsuch to the Supreme Court.

In 2011, a group of anti-TABOR plaintiffs sued in Denver federal court, arguing that TABOR violated the U.S. Constitution because it was inconsistent with the Constitution’s guarantee that every state have a “republican form of government.” (Kerr v. Hickenlooper).

Dave Kopel, our research director, conceived the idea of our filing an “friend of the court” brief to support TABOR. In Dave’s vision, the brief would be built around my 2002 Texas Law Review article showing that popular votes on taxes do not violate the “republican form.” We did file the brief. Nevertheless, the federal district court refused to dismiss the suit, and the Colorado AG—defending TABOR—appealed to the U.S. Court of Appeals for the 10th Circuit. The Court of Appeals likewise refused to dismiss. (This was in 2014.)

But Judge Gorsuch issued a strong dissent—arguing for dismissal. He not only specifically cited my article, but he built his dissent around another of our arguments—that the plaintiffs had never explained sufficiently in their papers just why TABOR violated the “republican form.”

The Colorado AG then asked the Supreme Court to review the case. The Supreme Court unanimously sent the case back, with a note all but directing the lower courts to dismiss the claim (which they still haven’t done).

So naturally I believe that it would be great to have another justice on the Supreme Court who has shown he can seriously consider our views.

The article Judge Gorsuch cited is Robert G. Natelson, A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause, 80 Tex. L. Rev. 807 (2002).