Neil Gorsuch: The Man For The Court, by Richard A. Epstein
Within hours of the nomination of Neil Gorsuch to the Supreme Court of the United States, the battle lines had already formed. Leftwing groups were reflexively opposed—as they would oppose any Republican nominee. Right-leaning groups rallied in support. It became almost impossible to separate truth from falsehood, analysis from spin.
I served on the Tenth Circuit Court of Appeals with Judge Gorsuch for over three years, before moving to Stanford University to teach constitutional law. He and I sat together on almost 50 cases of every description. We did not always agree. But Neil Gorsuch is a man of intelligence, independence, and integrity. In my opinion, he is a superb choice to replace Justice Antonin Scalia on the Court. In normal times, he would be swiftly and easily confirmed. Alas, these are not normal times.
Qualifications and Qualities of Mind
Gorsuch has impeccable and impressive qualifications for the High Court: a law degree from Harvard, a doctorate in legal philosophy from Oxford, Supreme Court clerkships with moderate Justices Byron White and Anthony Kennedy, private practice with one of the most respected law firms in Washington, public service at the Department of Justice, and now ten years of outstanding work on the Tenth Circuit. When nominated to that court in 2006, he won high praise from both sides of the aisle and was confirmed unanimously by the Senate.
More important than his qualifications are his qualities of mind. He is rigorously intelligent, fair-minded, and one of the finest writers in the entire judiciary. Like Justice Scalia, he tries to minimize the role that judges’ own views play in the interpretation of the law. Perhaps unlike Justice Scalia, a pugnacious lover of intellectual battle whose intellectual inclination was to clarify and sharpen differences, Gorsuch looks for common ground, even with judges of a generally opposing position. We see both of these qualities in this witty passage from Gorsuch’s dissenting opinion last year in A.M. v. Holmes:
Often enough the law can be “a ass—a idiot,” Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838)—and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands—and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass as they do. I respectfully dissent.
I asked my research assistant to pull every case in the last five years where Judge Gorsuch sat with both a Republican-appointed and a Democratic-appointed judge and the panel split as to the outcome. The results were striking. In almost a third of the cases, Judge Gorsuch voted with his presumably more liberal Democratic colleagues rather than the presumably more conservative Republicans. That is the mark of an independent, non-partisan jurist.
This is not just my opinion. In the days since the nomination, several liberal professors have studied his record and come to a similar conclusion.
Principles of Interpretation
Judge Gorsuch is a longstanding proponent of the view that the Constitution must be interpreted according to its text as it was understood by those with authority to enact it. In his words: “Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.” (Cordova v. City of Albuquerque (2016)). That sometimes leads to conservative results, but not always. As one liberal law professor wrote: “He is way too conservative for my taste, but his decisions are largely principled and fair from his originalist’s view of constitutional interpretation. . . . That approach can result in decisions that don’t reliably fall into any one place on the liberal-to-conservative spectrum.”
If the Constitution, fairly interpreted, does not speak to an issue, Judge Gorsuch leaves it to the political process. As he wrote in tribute to his mentor Justice Byron White, we should have “confidence in the people’s elected representatives, rather than the unelected judiciary, to experiment and solve society’s problems, so long as the procedures used were fair and the opportunity to participate was open to all.”
For example (and like Justice Scalia), this approach often leads him to rule in favor of criminal defendants based on the original meaning of constitutional trial guarantees or a narrow textual reading of criminal statutes. One example is United States v. Carloss (2016). In that case, he dissented from a decision holding that police may disregard a property owner’s “No Trespassing” signs. Gorsuch responded to the government’s concern that a contrary rulling would make the “job of ferreting out crime . . . marginally more difficult” with the pungent riposte: “[Obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits. Neither, of course, is it our job to weigh those costs and benefits but to apply the Amendment according to its terms and in light of its historical meaning.” In many more cases, Judge Gorsuch has voted to affirm convictions. His overall record in criminal cases is neither pro-prosecution or pro-defendant, but simply obedient to the law.
There is no reason to think that Judge Gorsuch regards the death penalty as unconstitutional. Perhaps that is because it is not.
Judge Gorsuch’s approach has led him to defend the constitutional autonomy of the states – whether exercised by a conservative Republican governor in Planned Parenthood v. Herbert (2016) or a liberal Democratic governor in Kerr v. Hickenlooper (2014). In light of the recent revival of interest in local autonomy in progressive circles, these power-devolving doctrines may win newfound respect. The genius of our system is to empower conservative states like Texas or West Virginia to resist progressive presidencies, and liberal states like California or Washington to resist conservative ones.
Judge Gorsuch’s opinion for the court in Energy & Environment Legal Inst. v. Epel (2016) has received little attention from his progressive critics. In it, Judge Gorsuch rejected a highly plausible challenge by a corporation to Colorado’s renewable energy rules, based on his reading of the historical meaning of the Commerce Clause. The case was a three-fer: it was against a corporation, in favor of environmental laws, and based on originalist interpretation. No wonder progressives prefer to ignore it!
The same principles probably make Judge Gorsuch skeptical of the Supreme Court’s jurisprudence on same-sex marriage and abortion. But whatever his views may be, they will not affect the balance of votes on those issues. He is replacing Justice Scalia, after all. I personally believe that the issue of same-sex marriage will not be reopened, and that some 45 years of precedent make radical change on abortion unlikely, no matter who is on the Court or what they think of the legal reasoning in Roe v. Wade.
Most importantly, Judge Gorsuch has never had a case on abortion rights, same-sex marriage, gun rights, or affirmative action. Any worries or hopes on these issues are purely a matter of speculation. Judge Gorsuch did, however, dissent from a Tenth Circuit decision forbidding the governor of Utah from cutting the funding from Planned Parenthood. The legal issue was the imputation of an unconstitutional motive to the governor without actual evidence of it, which could arise in any number of political contexts. Nothing in his opinion suggests that the abortion context affected his analysis. Gorsuch also dissented from the conviction of a defendant charged with knowing possession of a firearm, on the ground that the government did not prove an element of the crime. This decision has, absurdly, been treated as evidence of pro-gun views. Judge Gorsuch’s dissenting opinion begins this way:
People sit in prison because our circuit's case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today, this court votes narrowly, 6 to 4, against revisiting this state of affairs. So Mr. Games-Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land.
The language is passionate—but about innocence, not gun rights.
Freedoms of Speech and Religion
Among Judge Gorsuch’s most impassioned commitments is to the freedoms of speech and religion. Probably his best-known cases are Hobby Lobby v. Sibelius (2014), which upheld the right under the Religious Freedom Restoration Act of a closely-held family corporation not to be compelled to pay for insurance coverage of what they sincerely believe to be abortion-inducing drugs, and Little Sisters of the Poor v. Burwell, which applied the same principles to a Catholic religious order. I suspect most Americans agree that Catholic nuns should not be forced to pay for things their religion condemns. In my opinion, a government attentive to civil liberties would never have tried. Hobby Lobby was affirmed by the Supreme Court, and Little Sisters of the Poor was remanded in the expectation that the government could accommodate the Sisters’ religious beliefs without sacrificing any compelling governmental interests.
Judge Gorsuch’s commitment to freedom of religion extends to all faith and all kinds of people: to prisoners, to Muslims, to Native Americans, as well as to Christians. In Yellowbear v. Lampert (2014), for example, he wrote an opinion supporting the claim of a Native American prisoner for access to a sweat lodge for religious ceremonials. In Abdulhaseeb v. Calbone (2010), he supported the claim of a Muslim prisoner to religiously appropriate food. On the other hand, he recognizes that not all claims of religious freedom are legally warranted. He voted to reject a claim by members of a so-called “Church of Cognizance” to use marijuana as a sacrament, and claims by atheist and secular groups to tear down public monuments with religious elements. In the latter, Judge Gorsuch’s indignant common sense comes through:
It is undisputed that the state actors here did not act with any religious purpose; there is no suggestion in this case that Utah's monuments establish a religion or coerce anyone to participate in any religious exercise; and the court does not even render a judgment that it thinks Utah's memorials actually endorse religion. . . . Thus it is that the court strikes down Utah's policy only because it is able to imagine a hypothetical "reasonable observer" who could think Utah means to endorse religion—even when it doesn't.
Two freedom of speech cases warrant mention. In Riddle v. Hickenlooper (2014), he concurred in a decision protecting the right of minor-party candidates and their supporters to make campaign contributions equal to those allowed the Republicans and Democrats. And in Van Deelen v. Johnson (2007), he voted to extend the protection of the Petition Clause of the First Amendment to statements made in a petition, even if those statements were on a private matter and were in fact baseless. Judge Gorsuch explained, “[T]he constitutionally numerated right of a private citizen to petition the government for the redress of grievances does not pick and choose its causes but extends to matters great and small, public and private.”
Tenth Circuit judges do not have many opportunities to rule on the scope of executive power, but arguably this will be the most prominent Supreme Court issue of the coming decade. Not only will there be high-profile contests involving the ever-controversial President Donald Trump, but there will be even more cases involving the ever-increasing authority of bureaucratic agencies to govern our lives without congressional say-so or real democratic accountability.
As it happens, Neil Gorsuch has addressed this question, albeit obliquely. An alien, Hugo Rosario Gutierrez-Brizuela, applied to the immigration authorities for a change in immigration status. The executive branch, however, had changed its mind about how to handle this class of aliens, and applied its new-found ideas retroactively to Mr. Gutierrez-Brizeula. The court rejected the government’s position for technical reasons. Judge Gorsuch filed a separate concurring opinion. Rather than characterize it, I will quote a passage from the opinion. I believe it tells us all we need to know about what kind of Justice my former colleague will be:
[T]he founders considered the separation of powers a vital guard against governmental encroachment on the people's liberties, including all those later enumerated in the Bill of Rights. What would happen, for example, if the political majorities who run the legislative and executive branches could decide cases and controversies over past facts? They might be tempted to bend existing laws, to reinterpret and apply them retroactively in novel ways and without advance notice. Effectively leaving parties who cannot alter their past conduct to the mercy of majoritarian politics and risking the possibility that unpopular groups might be singled out for this sort of mistreatment — and raising along the way, too, grave due process (fair notice) and equal protection problems. Conversely, what would happen if politically unresponsive and life-tenured judges were permitted to decide policy questions for the future or try to execute those policies? The very idea of self-government would soon be at risk of withering to the point of pointlessness. It was to avoid dangers like these, dangers the founders had studied and seen realized in their own time, that they pursued the separation of powers. A government of diffused powers, they knew, is a government less capable of invading the liberties of the people.
In times like these, we need judges who are neither toadies nor resisters. We need judges who take their bearings from the Constitution, and not from party loyalties. In Neil Gorsuch, we have such a judge.