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Why does Sen. Mike Lee have issues with conservative Supreme Court justices?

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Supreme Court Chief Justice John Roberts.

Associated Press

SALT LAKE CITY — Sen. Mike Lee spent an “ungodly” amount of time poring through the judicial opinions of Neil Gorsuch and wholeheartedly supported his confirmation to the U.S. Supreme Court three years ago.

But recent Supreme Court decisions have the conservative Utah Republican questioning Gorsuch’s commitment to textualism and originalism in interpreting the law. Lee also has issues with Chief Justice John Roberts, who he said has made some “big mistakes.”

Lee disagrees with Gorsuch’s majority opinion, which Roberts joined in a 6-3 ruling, that it’s unlawful to fire someone for being gay or transgender under the 1964 Civil Rights Act. He also criticized Roberts for siding with the liberal majority in a 5-4 decision striking down a Louisiana law regulating abortion clinics.

Those rulings caused Lee to lament last month that “even the people who purport to be with us sometimes are not.”

Conservatives, he said, have to not take chances that Supreme Court vacancies are filled by justices who would make law rather than interpret it.

“There’s too much on the line. There’s too much they can mess with. They can remake our law in their own image. When they can supplant the role of the legislative branch with the stroke of a judicial pen, that is lawlessness,” Lee said in a radio interview with Family Research Council President Tony Perkins last month.

The senator favors textualist judges, those who interpret the law for what it says and based on its original public meaning at the time it passed. He also subscribes to originalism, the concept that the Constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified.

Lee, who was on President Donald Trump’s short list to fill the seat that went to Gorsuch, went after the former 10th Circuit Court of Appeals judge particularly hard on the radio program.

Gorsuch took a “meat cleaver” to the issue of how the civil rights law should apply to the LGBT individuals, Lee said. But the biggest problem, he said, is that the justice effectively rewrote the law.

Lee found that hard to accept given Gorsuch’s statement at his confirmation hearing that a judge’s role is to follow the words in the law, not replace them with words that aren’t there.

“I wish he had followed it. I wish I could have put that on record and then played it in a continuous loop in his office ever since we made the decision to confirm him,” Lee told Perkins.

Lee said he spent an “ungodly amount of time going through every opinion I could get my hands on” after Gorsuch was nominated and found a decade worth of good judicial decisions.

“This sort of ruling was not what we had in mind when we confirmed Neil Gorsuch,” he said. “This is not what we had in mind when we heard a judge speak passionately and see his 10th Circuit opinions, of which there were many, that echoed that same sentiment.”

Asked by Perkins whether Gorsuch’s confirmation hearing statement was deceitful, Lee said he couldn’t get into another person’s head, “so that’s between him and his maker to decide whether or not that was a deceitful statement at the time.”

Lee said he hopes and expects the opinion in the LGBTQ case was an aberration for Gorsuch and Roberts, not an ordinary course of business for them.

Roberts has made “big mistakes, including voting with the majority in the Louisiana abortion clinic case,” he said. The law required doctors to obtain licenses and admitting privileges at a hospital near the clinic where they perform abortions.

“He sided with the liberals on the court to bring about a very good day for those who perform abortions and a very bad day for women’s health and the babies whose lives are taken in abortions,” Lee wrote in a Facebook post.

Lee pointed to those Supreme Court rulings as instances where those justices have made decisions that aren’t in harmony with the conservative judicial principles of textualism and federalism.

“Meaning, our hope in each of these justices was that we would have somebody on there who would interpret the law in individual cases based on what the law says rather on the basis on what they might wish the law says. There is a big difference, and we’ve seen that difference play out in a few cases in the last few weeks,” he said recently on “America This Week.”

Lee said on Perkins’ radio show that the American legal education system, the law profession and society don’t automatically churn out conservative thinkers or textualists. The default for them is to be liberal or outcome-oriented, policymaking thinkers, he said.

“That’s one of the reasons this battle is so important,” he said, “because even the people who purport to be with us sometimes are not.”