So it’s Neil Gorsuch for SCOTUS: a jurist who is conservative, but not mad about it.
With this pick, the president has come through in a big way for socially conservative voters who chose him over Hillary Clinton because of the Supreme Court’s future. On Gorsuch’s views regarding religious liberty, Andrew T. Walker says:
In addition to his defense of Hobby Lobby’s religious liberty claim, Gorsuch wrote the majority opinion in a little-known but significant religious liberty case. In Yellowbear v. Lampert (2014), Gorsuch sided with the plaintiff, Andrew Yellowbear, a prisoner of native American descent who sued the Wyoming Department of Corrections for preventing him access to a sweat lodge which he argued was part of his faith. Gorsuch ruled that the Department of Correction violated Yellowbear’s religious rights.
In his ruling, Gorsuch noted that applicable law regarding sincerely held religious belief protects considerably more than the right to hold religious belief in private. Rather, the law protects religious exercise. He explained, “Even if others of the same faith may consider the exercise at issue unnecessary or less valuable than the claimant, even if some may find it illogical, that doesn’t take it outside the law’s protection. Instead, RLUIPA protects any exercise of a sincerely held religious belief. When a sincere religious claimant draws a line ruling in or out a particular religious exercise, “it is not for us to say that the line he drew was an unreasonable one.” He also cited the Religious Freedom Restoration Act (1993) in his opinion, noting that it “passed nearly unanimously” and that “RFRA was (and remains) something of a ‘super-statute.’”
Gorsuch has not ruled on abortion case, but he has come out against euthanasia.
In fact, one study has identified him as the most natural successor to Justice Antonin Scalia on the Trump shortlist, both in terms of his judicial style and his substantive approach.
With perhaps one notable area of disagreement, Judge Gorsuch’s prominent decisions bear the comparison out. For one thing, the great compliment that Gorsuch’s legal writing is in a class with Scalia’s is deserved: Gorsuch’s opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why. Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making. He is an ardent textualist (like Scalia); he believes criminal laws should be clear and interpreted in favor of defendants even if that hurts government prosecutions (like Scalia); he is skeptical of efforts to purge religious expression from public spaces (like Scalia); he is highly dubious of legislative history (like Scalia); and he is less than enamored of the dormant commerce clause (like Scalia). In fact, some of the parallels can be downright eerie. For example, the reasoning in Gorsuch’s 2008 concurrence in United States v. Hinckley, in which he argues that one possible reading of the Sex Offender Registration and Notification Act would probably violate the rarely invoked non-delegation principle, is exactly the same as that of Scalia’s 2012 dissent in Reynolds v. United States. The notable exception is one prominent concurrence last August, in Gutierrez-Brizuela v. Lynch, in which Gorsuch criticized a doctrine of administrative law (called Chevron deference) that Scalia had long defended. Even here, however, there may be more in common than meets the eye.
Of course I’m thrilled with Gorsuch and very pleased that Trump vindicated the decision of many social and religious conservatives to vote for him over the Court. But look at this: Here’s an interesting piece in the NYT by Neal Katyal, who was acting solicitor general under President Obama, making the case that liberals should back Gorsuch. Excerpts:
I am hard-pressed to think of one thing President Trump has done right in the last 11 days since his inauguration. Until Tuesday, when he nominated an extraordinary judge and man, Neil Gorsuch, to be a justice on the Supreme Court.
The nomination comes at a fraught moment. The new administration’s executive actions on immigration have led to chaos everywhere from the nation’s airports to the Department of Justice. They have raised justified concern about whether the new administration will follow the law. More than ever, public confidence in our system of government depends on the impartiality and independence of the courts.
There is a very difficult question about whether there should be a vote on President Trump’s nominee at all, given the Republican Senate’s history-breaking record of obstruction on Judge Merrick B. Garland — perhaps the most qualified nominee ever for the high court. But if the Senate is to confirm anyone, Judge Gorsuch, who sits on the United States Court of Appeals for the 10th Circuit in Denver, should be at the top of the list.
I, for one, wish it were a Democrat choosing the next justice. But since that is not to be, one basic criterion should be paramount: Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws?
I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him.
Katyal’s argument is that while it is tempting for Senate Democrats to exact payback for the GOP-controlled Senate’s sandbagging Merrick Garland’s SCOTUS nomination, if they are ultimately going to confirm somebody sent up by Trump, they would do well to confirm Gorsuch, who is not going to be a rubber stamp for Trump.
I know nothing about Gorsuch’s jurisprudence or temperament, but I suspect Katyal is right about that. Thinking like a Democrat here, I would be sorely tempted to pay the GOP back for what they did to Garland. But the Republicans were in a different political situation when Justice Scalia died last February. Everybody knew an election was coming up, and that the Court’s future would be a major issue. I think they owed Garland a hearing and a vote as a matter of fair play, but it was certainly plausible to hold off until the election decided matters.
The Democrats will not be able to stall for the next four years, especially given the advanced ages of Justices Breyer, Kennedy, and Ginsburg. If they scapegoat Gorsuch for the sins of Mitch McConnell et alia, they will probably not like the next nominee sent to the Senate by President Trump as much. Besides, the Gorsuch nomination is not the hill for Democrats to die on, as it only restores the status quo to the Court it had when Scalia was alive. The nominee to follow Gorsuch is the one that matters more.
UPDATE: Damon Root writes at Reason:
Gorsuch has also rejected pro-government deference in the Fourth Amendment context. For instance, in his 2016 dissent in United States v. Carloss, Gorsuch strongly objected to the majority’s view that police officers had the “implied consent” to enter private property for a warrantless “knock and talk” on a homeowner’s front porch even though the homeowner had placed multiple “No Trespassing” signs around the property and even on the front door. Under the government’s flawed theory of the Fourth Amendment, Gorsuch complained, “a homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn’t enough to revoke the state’s right to enter.” As Gorsuch dryly observed, “this line of reasoning seems to me difficult to reconcile with the Constitution of the founders’ design.”
Gorsuch demonstrated admirable and reassuring judgment in these cases. Not only did he cast a principled vote against overreaching law enforcement, he cast a principled vote against the overreaching executive branch. It’s not difficult to imagine Gorsuch imposing the same severe judicial scrutiny against the misdeeds of the Trump administration.
Amen to that.