Donald Trump will nominate a textualist and an originalist Supreme Court justice in the vein of Antonin Scalia.
The National Review
February 1, 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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