By Ramesh Ponnuru
Tuesday, January 31, 2017
President Trump’s nominee to the Supreme Court will be
Neil Gorsuch, a well-respected conservative whose legal philosophy is
remarkably similar to that of Antonin Scalia, the justice he will replace if
the Senate confirms him. He is, like Scalia, a textualist and an originalist:
someone who interprets legal provisions as their words were originally
understood.
Gorsuch is a Colorado native and the son of a Republican
politician, the late Anne Gorsuch Burford, who was a state legislator and then
director of the Environmental Protection Agency for President Reagan. He
attended Columbia University and Harvard Law School, after which he clerked for
D.C. Circuit Court judge David Sentelle. He then clerked for Supreme Court
justices Byron White and Anthony Kennedy in 1993–94. The next year, he studied
for a doctorate of philosophy at Oxford University under the legal philosopher
John Finnis.
After spending ten years at a law firm in Washington,
D.C., Gorsuch went to work for the Justice Department in 2005–06. President
George W. Bush nominated him to the Tenth Circuit Court of Appeals, which
covers Colorado, Kansas, Oklahoma, Utah, Wyoming, and New Mexico. His
confirmation was quick and uncontroversial.
That Judge Gorsuch’s judicial philosophy is similar to
Justice Scalia’s is evident from a tribute the former gave after the latter’s
death. In that tribute, Gorsuch summarized and endorsed Scalia’s method of
legal interpretation:
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. As Justice Scalia
put it, “if you’re going to be a good and faithful judge, you have to resign
yourself to the fact that you’re not always going to like the conclusions you
reach. If you like them all the time, you’re probably doing something wrong.”
A lawyer who clerked for both Justice Scalia and Judge
Gorsuch sees parallels between the two men. Gorsuch is “a law-has-right-answers
kind of guy, an originalist and a textualist,” he says. “He believes that the
enterprise of law is real and worth doing and not just politics by other
means.”
A low-profile 2012 case, U.S. v. Games-Perez, illustrates how Gorsuch has applied these
views. At issue was a federal law that authorizes prison terms for anyone who
“knowingly violates” a ban on the possession of firearms by a convicted felon.
A precedent in the Tenth Circuit held that a defendant who knew that he had a
firearm could be sentenced under that provision even if he did not know that he
was a convicted felon. (In the case Gorsuch was deciding, Miguel Games-Perez
had previously taken a plea deal that the presiding judge had misdescribed as
an alternative to being “convicted of a felony.”)
Gorsuch participated in a panel of three of the circuit’s
judges that affirmed the prison sentence. Gorsuch concurred in the result
because he felt bound by precedent. At the same time, he made a powerful
argument that the circuit’s precedent could not square with the text of the
law. And when the case later came before the circuit, Gorsuch urged it to
reconsider that precedent.
The case brought together several strands of Gorsuch’s
thinking. It demonstrated his willingness, shared with Scalia, to overturn a
criminal conviction when a proper reading of the law required it. He paid close
attention to the text and grammar of the law while expressing skepticism about
letting legislative history guide his decision. “Hidden intentions never trump
expressed ones,” he wrote, adding an aside about “the difficulties of trying to
say anything definitive about the intent of 535 legislators and the executive.”
(Scalia was a foe of the judicial consideration of legislative intent for
similar reasons.) And it showed, as well, his understanding that a judge must
follow his duty even when it leads somewhere he dislikes. “He cared a lot about
what the precedents are,” says the former clerk. “He was not interested in
bending them or the usual tricks judges can use for getting around them if they
don’t like them.”
Also like Scalia, Judge Gorsuch is skeptical of the
“dormant commerce clause”: the longstanding legal doctrine that the
Constitution’s grant of power over interstate commerce to Congress implies
limits on the states’ power over it even when Congress has not spelled out
those limits. And he shares Scalia’s preference for clear legal rules over
vague “standards” that judges can manipulate to reach desired conclusions.
The former clerk sees similarities between Gorsuch and
Scalia that go beyond legal issues. “Gorsuch took a lot of care with writing,”
he says. “He has a pretty well-earned reputation as one of the best writers on
the federal bench. He always cared a lot about an opinion having his voice.”
The same was famously true of Scalia. But the voices are different: “Justice
Scalia had a sharp pen for dissents. [Judge Gorsuch] is just temperamentally
not inclined to do that.”
The difference may be related to another one: Gorsuch has
expressed an optimism about the trajectory of American jurisprudence that
Scalia did not. His tribute to the late justice argued that thanks in large
part to Scalia, even liberals on the Supreme Court were more likely to look to
the text and original public meaning of laws in making their decisions.
And it would be a mistake to assume that Gorsuch would
always rule the same way as Scalia. He may be more willing than Scalia was to
rein in administrative agencies. He has called into question Supreme Court
precedents that command judicial deference to the legal interpretations of
those agencies. He has been skeptical, as well, of agencies that purport to
apply regulations retroactively.
As Trump and his advisers have deliberated about filling
the vacancy on the Supreme Court, Gorsuch has not had the strong and prominent
advocates that others did. Senator Jeff Sessions, Trump’s nominee for attorney
general, favored Judge William Pryor, who like him comes from Alabama. Judge
Thomas Hardiman enjoyed the support of the unlikely duo of staunch social
conservative Rick Santorum, a fellow Pennsylvanian, and the socially liberal
Maryanne Trump Barry, the president’s sister, who serves with Hardiman on the
Third Circuit Court of Appeals.
What recommended Gorsuch was his reputation for legal
excellence and his relative lack of controversy. Trump has said that he wants
the Senate to change its rules so that Supreme Court nominees with the support
of 51 senators are guaranteed confirmation, but it is not clear that the Senate
and its leaders are willing to do that. While everyone involved in the process
respects Pryor, they also think Gorsuch would be likely to get more votes.
Gorsuch’s tie to Justice Kennedy, frequently a swing vote
on the Supreme Court, may also be an asset. If Gorsuch can persuade Kennedy to
join an opinion, a narrow loss for the conservative position could become a
narrow win. There is also the possibility that Gorsuch’s presence would
reassure Kennedy about the direction of the Court and make him more willing to
let Trump name his own replacement.
Everyone understands, however, that Gorsuch will draw
more opposition now than he did when he was confirmed for his current job.
Abortion will be a major point of contention, as it always is in confirmation
debates. His record as a judge provides little direct evidence of his view of
the Court’s abortion jurisprudence. Gorsuch was a dissenter last year in a case
involving an attempt by the Republican governor of Utah to end state funding
for Planned Parenthood. His colleagues blocked that policy. Gorsuch faulted
their decision on procedural grounds, arguing that the appeals court was
showing too little deference to the factual findings of a lower court that had
ruled in the governor’s favor.
In two high-profile religious-liberty cases, Gorsuch voted
to hold that the Obama administration had violated the Religious Freedom
Restoration Act by refusing to exempt religious employers from a requirement to
cover contraceptives in their insurance plans. In neither case, though, will it
be easy for opponents to portray his decisions as evidence of
social-conservative zealotry.
He concurred in a decision freeing the Hobby Lobby chain
from the contraceptive mandate. Its Evangelical owners considered some of the
contraceptives they were forced to cover to be abortifacients and objected to
them for that reason. A narrow 5–4 majority of the Supreme Court affirmed that
decision. Gorsuch joined a dissent arguing that the Little Sisters of the Poor,
a group of Catholic nuns, had shown that the Obama administration’s fines for
noncompliance with the mandate amounted to a substantial burden on the exercise
of their faith — one of the preconditions for getting protection under the
Religious Freedom Restoration Act. The Supreme Court unanimously vacated the
decision from which Gorsuch had dissented.
Gorsuch’s solicitude for religious liberty has not been
confined to cases involving abortion, contraception, or conservative
Christians. In the less well-known Yellowbear
v. Lampert, Gorsuch ruled that the Religious Land Use and Institutionalized
Persons Act meant that a Native American prisoner had to have access to his
prison’s sweat lodge.
In 2006, Princeton University Press published Gorsuch’s
book The Future of Euthanasia and
Assisted Suicide, which argued against their legalization while also
maintaining that people have a right to refuse treatment even where such
refusal may have the effect of causing their death. It has been described by
liberals as “a serious book” with an “even-handed analysis,” but divisions over
the issues it discusses will surely be aired during his confirmation hearings.
The book will also be mined for evidence of his views on
abortion. Gorsuch writes that his argument is “premised on the idea that all
human beings are intrinsically valuable.” It’s the kind of language that
opponents of abortion frequently use. But on the core questions of whether the
law should treat fetuses as “human beings,” and whether the Constitution allows
them to be so treated, the book is silent.
Tonight, President Trump will nominate a careful and
thoughtful judge whose jurisprudence is squarely in the mainstream of legal
conservatism. Gorsuch shares Scalia’s philosophy and intelligence, if not his
acerbity, and in selecting him, Trump has made good on a crucial campaign
promise.
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