By Ed Whelan
Tuesday, January 31, 2017
On the Saturday afternoon last February when he received
word of Justice Scalia’s death, Neil M. Gorsuch “immediately lost [his] breath”
and “couldn’t see . . . for the tears.”
In his grief over the death of a justice he deeply
admired and emulated, Judge Gorsuch could hardly have imagined the series of
events that would lead to his being selected today to fill the Scalia vacancy.
And while he has rightly recognized that no one could ever replace Justice
Scalia, there are strong reasons to expect Justice Gorsuch to be an eminently
worthy successor to the great justice.
Gorsuch is a brilliant jurist and dedicated originalist
and textualist. He thinks through issues deeply. He writes with clarity, force,
and verve. And his many talents promise to give him an outsized influence on
future generations of lawyers.
Gorsuch’s judicial outlook is reflected in his beautiful
speech (text
and video)
celebrating — and embracing — Justice Scalia’s traditional understanding of the
judicial role and his originalist methodology:
Perhaps the great project of
Justice Scalia’s career was to remind us of the differences between judges and
legislators. To remind us that legislators may appeal to their own moral
convictions and to claims about social utility to reshape the law as they think
it should be in the future. But that judges should do none of these things in a
democratic society. That judges should instead strive (if humanly and so
imperfectly) to apply the law as it is, focusing backward, not forward, and
looking to text, structure, and history to decide what a reasonable reader at
the time of the events in question would have understood the law to be—not to
decide cases based on their own moral convictions or the policy consequences
they believe might serve society best.
In that speech, Gorsuch acknowledges that Justice
Scalia’s project had its critics, from the secular moralist Ronald Dworkin to
the pragmatist Richard Posner. He explains why he rejects those critics and
instead sides with Justice Scalia in believing that “an assiduous focus on
text, structure, and history is essential to the proper exercise of the
judicial function.” The Constitution itself carefully separates the legislative
and judicial powers. Whereas the legislative power is the “power to prescribe
new rules of general applicability for the future,” the judicial power is a
“means for resolving disputes about what existing law is and how it applies to
discrete cases and controversies.” This separation of powers is “among the most
important liberty-protecting devices of the constitutional design.” Among other
things, if judges were to act as legislators by imposing their preferences as
constitutional dictates, “how hard it would be to revise this so-easily-made
judicial legislation to account for changes in the world or to fix mistakes.”
Indeed, the “very idea of self-government would seem to wither to the point of
pointlessness.”
As Gorsuch put it (in Cordova
v. City of Albuquerque), the Constitution “isn’t some inkblot on which
litigants may project their hopes and dreams . . . , but a carefully drafted text judges are charged with applying according to
its original public meaning” (emphasis added). In his one foray as a National Review Online contributor,
in 2005 (before he took the bench), Gorsuch lamented that “American liberals
have become addicted to the courtroom, relying on judges and lawyers rather
than elected leaders and the ballot box, as the primary means of effecting
their social agenda on everything from gay marriage to assisted suicide to the
use of vouchers for private-school education.”
Gorsuch’s Judicial Record, in Brief
At 49 years of age, Gorsuch has already served for more
than a decade on the U.S. Court of Appeals for the Tenth Circuit, which reviews
decisions of the federal district courts in the states of Colorado, Kansas, New
Mexico, Oklahoma, Utah, and Wyoming. His judicial record (which I am detailing
more extensively in a series of posts on NRO’s Bench Memos blog) is remarkably
impressive.
On issues of religious liberty, Gorsuch has an especially
strong record. In 2013, he determined that Hobby Lobby was entitled under the
federal Religious Freedom Restoration Act to relief from the HHS Obamacare
mandate that would have required it to provide its employees insurance coverage
for abortifacient drugs and devices. (By a 5–4 vote, the Supreme Court ruled in
favor of Hobby Lobby in 2014.) In 2015, he objected vigorously to a Tenth
Circuit ruling that held that the massive fines that the Obama administration
threatened to impose on the Little Sisters of the Poor for refusing to facilitate
insurance coverage for contraceptives and abortifacients did not seriously
implicate their religious liberty. (In 2016, the Supreme Court sent the case
back to the Tenth Circuit to enable the government to work out a more sensible
approach.)
Gorsuch has also fought against a hyper-expansive reading
of the establishment clause that would exclude religion from the public square.
In 2009 (in Green v. Haskell County Board
of Commissioners), he disputed a panel decision that ruled that a county’s
Ten Commandments display was unconstitutional. He memorably complained that the
panel’s hypothetical “reasonable observer” — whose imagined perceptions dictate
what does and does not violate the establishment clause — was not “someone who
got things right” but was instead “an admittedly unreasonable” observer who “just gets things wrong” “because, the
panel tells us, our observer is from a small town, where such errors cannot be
helped.” In another case (American
Atheists, Inc. v. Davenport), he disagreed with a panel ruling that Utah
violated the establishment clause when it allowed the private Utah Highway
Patrol Association to memorialize troopers killed in the line of duty by
erecting large white crosses on public property near the locations of their
deaths. The Tenth Circuit’s “reasonable observer,” in his view, “continues to
be biased, replete with foibles, and prone to mistake” (as well as “a bit of a
hot-rodder”).
Gorsuch has earned special acclaim for his insights on
administrative law and separation of powers. In an opinion last August (Gutierrez-Brizuela v. Lynch), he argued
that the Supreme Court’s precedents on deference to reasonable agency
interpretations of law “permit executive bureaucracies to swallow huge amounts
of core judicial and legislative power and concentrate federal power in a way
that seems more than a little difficult to square with the Constitution of the
framers’ design.” He called for the Supreme Court to reconsider whether the
so-called Chevron doctrine of
deference is sound. In another recent opinion (United States v. Nichols), he said that Congress had gone too far
in delegating power to an agency to decide what conduct is criminal: For
Congress to “effectively pass off to the prosecutor the job of defining the
very crime he is responsible for enforcing” is “by any plausible measure . . .
a delegation run riot, a result inimical to the people’s liberty and our
constitutional design.”
Gorsuch has had only one case involving the matter of
abortion (Planned Parenthood of Utah v.
Herbert). Last October, he dissented strenuously when the Tenth Circuit
refused to reconsider a panel ruling in favor of Planned Parenthood’s Utah
affiliate. The panel had granted Planned Parenthood a preliminary injunction
against the Utah governor’s directive to state agencies to stop acting as
intermediaries for federal funds flowing to Planned Parenthood. Gorsuch faulted
the panel for failing to accord the appropriate degree of deference to the
district court’s factual findings and for making its own bizarre inferences
about the governor’s reasons for acting.
In a case involving a firearms conviction (United States v. Games-Perez), Gorsuch
protested that “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.” In support of his interpretation of the statute, Gorsuch
invoked, quoting Justice Thomas, the “long tradition of widespread lawful gun
ownership by private individuals in this country” and the Supreme Court’s
recognition that the Second Amendment “protects an individual’s right to own
firearms and may not be infringed lightly.”
On criminal law and procedure, Gorsuch has a strong and
balanced record. He has protected the privacy rights of Americans while
respecting the proper powers of the police. Reversing a lower court, he
concluded that when law-enforcement officers open and examine private e-mails,
they are engaging in a search governed by the Fourth Amendment. He has argued,
in dissent, that a homeowner who posted No
Trespassing signs all over her property didn’t consent to police
entering her property and knocking on her front door. But he has also explained
that the Fourth Amendment must be applied in a manner that “takes a realistic
view of human capacities and limitations.”
Gorsuch has complained that the overcriminalization of
“so many facets of daily life [means] that prosecutors can almost choose their
targets with impunity.” He has insisted that laws and regulations provide clear
notice of what is prohibited, and he has prevented police officers from being
held personally liable for conduct that wasn’t clearly unlawful.
Rocky Mountain Roots
Neil Gorsuch combines an appealing Rocky Mountain profile
with a stellar personal history. He has deep roots in his hometown of Denver
and absorbed his work ethic from his family. One of his grandfathers worked his
way through law school with a job as a streetcar conductor in Denver. The other
grew up in an Irish tenement in Denver and, at the age of eight, began working
to support his family as a porter at a train station. Both of his parents were
lawyers in Denver. His mother, Anne Gorsuch Burford, was one of the first women
to work as a prosecutor in Denver, was twice elected to the Colorado
legislature, and was President Reagan’s first head of the EPA.
In his youth, Gorsuch worked a variety of everyday jobs:
shoveling snow, moving furniture, working the front desk at a Howard Johnson’s
hotel. He also developed a lifelong love of the outdoors.
Gorsuch has a distinguished academic pedigree, with an
undergraduate degree from Columbia, a J.D. from Harvard law school (in the same
1991 class as Barack Obama), and a doctorate (as a Marshall Scholar) from
Oxford. In his courageous book The Future
of Assisted Suicide and Euthanasia, he propounds the principles that “human
life is fundamentally and inherently valuable, and that the intentional taking
of human life by private persons is always wrong.”
After law school, Gorsuch was hired as a law clerk by
D.C. Circuit judge David Sentelle and then by Supreme Court justice, and
Colorado legend, Byron R. White. Because Justice White retired shortly before
Gorsuch’s clerkship began, Gorsuch, in addition to assisting White, doubled as
a clerk for Justice Anthony M. Kennedy.
After his clerkships, Gorsuch joined a D.C. law firm,
where he quickly became a partner and litigated for a decade. In 2005, he left
private practice to serve as deputy associate attorney general in the U.S.
Department of Justice.
With the support of both Colorado senators — including
Democrat Ken Salazar — President Bush nominated Gorsuch to a Tenth Circuit
judgeship in 2006. The American Bar Association judicial-selection panel
unanimously gave Gorsuch its highest rating of well-qualified. The Senate
confirmed him unanimously, by voice vote, barely two months after his
nomination.
Judge Gorsuch’s path to confirmation — this time to
become Justice Gorsuch and a fit successor to Justice Scalia — should again be
smooth and swift.
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