President Donald Trump has selected Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals to succeed the late Justice Antonin Scalia on the Supreme Court.
A conservative stalwart who has served on the federal bench for over decade, Gorsuch became the frontrunner for the appointment among court-watchers in the waning days of the search.
At 49, he could conceivably serve on the Court for over 30 years if confirmed.
Polished Credentials
A stuffy credentialism has pervaded the judicial selection process of late. Each member of the current court attended either Harvard or Yale Law School, and all, with the exception of Justice Elena Kagan, served as federal appeals judges prior to their appointment. Several were clerks to former justices.
In many ways, Gorsuch fits this archetype. He holds a law degree from Harvard Law School and a doctorate in legal history from Oxford, where he was a Marshall Scholar. He held prestigious clerkships, first for Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit, then for Justices Byron White and Anthony Kennedy on the Supreme Court.
Gorsuch is also the author of two books. His first book, “The Future of Assisted Suicide and Euthanasia,” was published by Princeton University Press in 2006. He contributed to a second book last year, “The Law of Judicial Precedent,” a treatise on the doctrine of precedent assembled by Black’s Law Dictionary editor Bryan Garner. He is consistently identified as one of the finest writers on the federal bench given his elegant yet unpretentious prose.
“He writes opinions in a unique style that has more verve and vitality than any other judges I study on a regular basis,” District Judge John Kane, a President Jimmy Carter-appointee, told Adam Liptak of The New York Times.
Given his scholarly profile and decade of experience on the 10th Circuit, Gorsuch possesses the intellectual and professional sheen typical of recent nominees.
Scalia’s Heir Apparent?
A panel of legal scholars identified Gorsuch as one of the potential nominees most likely to emulate Scalia scholastically and stylistically. The four-member group produced a paper called “Searching for Justice Scalia: Measuring The ‘Scalia-ness’ of the Next Potential Member of the U.S. Supreme Court,” which surveyed key characteristics to determine which candidates are most likely to emulate Scalia’s jurisprudence and style.
The study measured “Scalia-ness” in three ways: How much the candidate engages with or promotes originalism, Scalia’s preferred interpretive theory, in their opinions; how often they cite Scalia’s non-judicial writings; and how often they write separate opinions. The authors use these metrics to establish a “Scalia Index Score”(SIS) to evaluate each nominee.
Gorsuch received the second highest SIS of the 21 candidates put forward by Trump as potential nominees during the campaign. He was second only to Utah Supreme Court Justice Thomas Lee. He scored particularly well on the originalism metric, but falls in the average range on the other two measures.
His opinion in U.S. v. Games-Perez, in particular, flagged at SCOTUSblog, suggests Gorsuch is a thorough-going Scalia-ite. The opinion channels the late justice to the extent that it looks askance at both judicial reliance on legislative history, and vague guidelines that subvert clear standards, while urging a close and prudential readings of texts.
Friendly to Religious Liberty
Gorsuch participated in a high-profile religious liberty case reviewed by the Supreme Court. He wrote a concurring opinion in the en banc 10th Circuit’s review of Hobby Lobby Stores v. Sebelius, which asked the court to decide if the 1993 Religious Freedom Restoration Act allows a closely held for-profit company to deny its employees contraceptive coverage based on religious objections.
His concurring opinion tracked the problem of complicity, and argued the lower court had given insufficient (and statutorily required) credence to the fact the company’s owners felt any sort of participation in a contraception regime violated their religious beliefs.
He writes:
“And as we have seen, it is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes ‘too much’ moral disapproval on those only ‘indirectly’ assisting wrongful conduct. Whether an act of complicity is or isn’t ‘too attenuated’ from the underlying wrong is sometimes itself a matter of faith we must respect.”
His opinion was largely vindicated when the Supreme Court found for Hobby Lobby in a 5-4 ruling.
He has also written two dissents criticizing the “reasonable observer” test applied in establishment clause cases, formulated by Justice Sandra Day O’Connor. The purpose of the test is to determine if a government action leaves the average observer with the perception that government is endorsing or disparaging religion.
“Our court has now repeatedly misapplied the ‘reasonable observer’ test, and it is apparently destined to continue doing so until we are told to stop. Justice O’Connor instructed that the reasonable observer should not be seen as ‘any ordinary individual, who might occasionally do unreasonable things, but . . . rather [as] a personification of a community ideal of reasonable behavior.’ Yet, our observer continues to be biased, replete with foibles, and prone to mistake.”
The “reasonable observer” and “reasonable man” tests were favorite targets of Scalia, who saw them as useless for lawyer’s work.
His support for religious accommodations in the context of the Religious Land Use and Institutionalized Persons Act is similarly capacious. He sided with a Native American prisoner seeking access to a sweat lodge in Yellowbear v. Lambert in 2014.
Hostile to the Dormant Commerce Clause
The dormant commerce clause will find no ally in Gorsuch. The theory argues that the Constitution’s explicit grant of authority over interstate commerce to Congress restricts the ability of states to regulate the same, even in the absence of an explicit restriction from Congress. The doctrine has the effect of entrenching federal power over commerce (a vast wellspring of political authority) over and against the states. Dormant commerce clause jurisprudence has been firmly established by the Supreme Court and is prevalent throughout the federal courts.
Though he never expressly contravenes the theory — as it would probably be inappropriate for a circuit judge to do so — he does seem dubious of the idea. For example, in Energy and Environmental Institute v. Epel, he writes:
“Employing what’s sometimes called ‘dormant’ or ‘negative’ commerce clause jurisprudence, judges have claimed the authority to strike down state laws that, in their judgment, unduly interfere with interstate commerce. Detractors find dormant commerce clause doctrine absent from the Constitution’s text and incompatible with its structure.”
Skeptical of the Administrative State
Gorsuch wrote a concurring opinion in a complex immigration case in August 2015, which thoroughly repudiated the Chevron doctrine, which requires courts to submit to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. The opinion quickly became something of a cause celebre among critics of the administrative state, who charge that Chevron and its progeny shield vast swaths of agency action from judicial review.
He wrote:
“There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron…permit[s] 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.”
He added that Chevron was “no less than a judge-made doctrine for the abdication of the judicial duty.”
Democrats Promise Filibuster
Democratic Sen. Jeff Merkley told reporters Monday that he will filibuster any nominee put forward by Trump, except Judge Merrick Garland. Senate Republicans successfully stymied Garland’s nomination for nearly 10 months, after former President Barack Obama selected him to succeed the late Justice Antonin Scalia. Merkley claims most of the Democratic caucus will join him in the effort.
“This is a stolen seat. This is the first time a Senate majority has stolen a seat,” Merkley said. “We will use every lever in our power to stop this.”
“A very large number of my colleagues will be opposed,” he added.
Gorsuch was not considered a controversial nominee when elevated to the 10th Circuit. He was confirmed on a voice vote with the support of many of the same Democrats who now pledge to stop him.
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