A Primer On Supreme Court Nominee Neil Gorsuch

By on February 7, 2017
Backview of a young judge

February 8, 2017

A flurry of stories this week sought to provide background and context for the legal career of Judge Neil Gorsuch, the federal appeals court judge nominated to the U.S. Supreme Court by President Donald Trump. Gorsuch went to undergrad at Columbia and attended Harvard Law, and also earned a Marshall scholarship to Oxford. He was a partner at one of Washington’s top litigation law firms and was also a clerk for Supreme Court Justices Byron White and Anthony M. Kennedy. At just 39, Gorsuch became one of the country’s youngest federal appeals court judges, and he was approved by unanimous vote. Jeffrey Rosen, George Washington University law professor and legal editor at The Atlantic, called Gorsuch, “one of the most respected conservative legal intellectuals on the federal bench.”

Like Scalia, But Not Exactly

Gorsuch is an originalist, in the same ideological camp as the late Justice Antonin Scalia, whom he would replace on the bench. “Like [Scalia], he has the ability and the ambition to lead America’s constitutional debate by following a clear vision of textualism and originalism, based on the premise that judges should separate their political from their constitutional conclusions,” Rosen writes. Indeed, Gorsuch’s dedication to the intent of the Fourth Amendment led him to rule in United States v. Krueger in 2015 that officers violated the rights of a child pornographer by searching the suspect’s home under an invalid warrant. Similarly, in United States v. Ackerman in 2016, Gorsuch held that the National Center for Missing and Exploited Children violated the Fourth Amendment by searching a suspect’s private e-mails.

Also like Scalia, Gorsuch is said to be a skilled writer, elevating the restatement of facts to “a form of wry nonfiction,” according to the Wall Street Journal. Justice Elena Kagan is among those who have heaped praise on Gorsuch’s “lucid and occasionally lyrical writing style,” according to the Washington Post. But, some said Gorsuch may have an entirely different demeanor on the Court. Scalia, though he forged close relationships with his fellow justices, was famously confrontational, often packing sharp verbal barbs into withering dissents. “The style could not be more different than [Scalia’s],” Robert George, professor of jurisprudence at Princeton University, told the Wall Street Journal. Gorsuch “doesn’t behave like he’s a knight in combat or a boxer in the ring.” Still, George said, “He’s not going to cultivate his fellow justices with a view to winning them over to anything any more than [Scalia] did.”

Judicial Impartiality

Gorsuch appears dedicated to the idea of judicial impartiality. At the White House, while accepting Trump’s nomination, Gorsuch said, “a judge who likes every outcome he reaches is very likely a bad judge.” In his tribute to Scalia, titled, “Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia,” Gorsuch wrote: “Throughout my decade on the bench, I have watched my colleagues strive day in and day out to do just as Socrates said we should—to hear courteously, answer wisely, consider soberly, and decide impartially. Men and women who do not thrust themselves into the limelight but who tend patiently and usually quite obscurely to the great promise of our legal system—the promise that all litigants, rich or poor, mighty or meek, will receive equal protection under the law and due process for their grievances. Judges who assiduously seek to avoid the temptation to secure results they prefer. And who do, in fact, regularly issue judgments with which they disagree as a matter of policy—all because they think that’s what the law fairly demands.”

Separation of Powers

The Supreme Court has operated with only eight members for nearly a year, leading to two major 4-4 ties and causing dismay among Democrats, who watched then-President Barack Obama’s nominee, Merrick Garland, go for months without so much as a hearing. Appointing Gorsuch to the bench would effectively restore the Court’s ideological balance to what it was before Scalia’s passing. Interestingly, however, Rosen noted that Gorsuch has clerked for Justice Anthony Kennedy, and “seems more likely than any other nominee to persuade Kennedy to vote with the conservatives rather than the liberals.”

Trump and conservatives should note, Rosen says, that Gorsuch’s record “suggests a willingness to transform the law and to enforce constitutional limitations on the excesses of Congress and the president.” There’s no doubt, Rosen writes, “that the principled Gorsuch would be willing to rule against Trump or a Republican Congress if he felt they exceeded their constitutional bounds.” In a separate concurrence to his own majority opinion in Gutierrez-Brizuela v. Lynch in 2016, Gorsuch wrote: “[T]he fact is Chevron and Brand X 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. Maybe the time has come to face the behemoth.” In this line of thinking, Eric Citron with SCOTUSblog wrote, “Gorsuch is plainly a thought leader, expressing judicial sentiments many conservatives with similar concerns have rarely voiced, and which even Scalia might have bristled at.”

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