A Supreme Successor to Justice Scalia

Published January 31, 2017

National Review Online

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.

— Ed Whelan, president of the Ethics and Public Policy Center, is a former law clerk to Justice Scalia. He is a regular contributor to National Review Online’s Bench Memos, where he will be blogging extensively about the Gorsuch nomination.

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