Judge Gorsuch will be an originalist Supreme Court justice in the Scalia mold.
On the campaign trail, Donald Trump promised to nominate a justice "very much in the mold of Justice Scalia" to fill the late jurist's seat. The man he picked, Judge Neil Gorsuch, fits that mold. In ten years on the United States Court of Appeals for the Tenth Circuit, Gorsuch repeatedly turned to the original public meaning of the often open-ended words of constitutional text, rather than adapting the words to changing times. Gorsuch laid out this interpretive methodology in a 2016 decision: "Ours is the job of interpreting the Constitution. And that document isn't some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning."
Gorsuch has similarly embraced Scalia's commitment to applying the words of laws as written rather than trying to divine legislatures' intent. Scalia was a critic of using unenacted legislative history and other devices to figure out the underlying meaning of statutory text — a practice that can lead to "jiggery-pokery," as the justice called the Supreme Court's efforts to read "state" as "federal" in interpreting Obamacare provisions in 2014. Gorsuch adopted this reasoning in a 2012 opinion, urging his Tenth Circuit colleagues to reconsider precedential holdings that the government need not demonstrate that a criminal defendant had "knowledge" of his felony status to secure a conviction under the federal firearms laws — despite the law's explicit requirement of such knowledge. Gorsuch wrote, "whatever the legislative history may or may not suggest about Congress's collective 'intent' (putting aside the difficulties of trying to say anything definitive about the intent of 535 legislators and the executive . . .), the law before us that survived the gauntlet of bicameralism and presentment couldn't be plainer."
Gorsuch, like Scalia before him, is hardly inclined to defer reflexively to the state on behalf of criminal defendants. Traditionally, individuals could be held civilly liable for accidentally transgressing legal norms, but to be criminally convicted, an individual had to have mens rea, Latin for a "guilty mind." A 2010 study by the Heritage Foundation and the National Association of Criminal Defense Lawyers found that 57 percent of the 446 new nonviolent crimes proposed in the 109th Congress lacked the traditional intent standard, as did 64 percent of those crimes ultimately enacted into law. Combined with the multiplication of federal laws — more than 4,500 federal crimes are now on the books, along with an estimated 300,000 more crimes in federal regulations — individuals often find themselves ensnared by criminal statutes for seemingly innocent conduct.
Scalia was a critic of using unenacted legislative history and other devices to figure out the underlying meaning of statutory text — a practice that can lead to "jiggery-pokery," as the justice called the Supreme Court's efforts to read "state" as "federal" in interpreting Obamacare provisions in 2014.
In a 2013 speech to the Federalist Society, Gorsuch asked, "What happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?" This echoed Scalia, who in a 2011 case dissented from a Supreme Court majority decision that applied Congress's ambiguous law specifying "violent felonies" against the criminal defendant. "We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws," Scalia wrote. "In the field of criminal law, at least, it is time to call a halt."
Gorsuch is less likely than Scalia was to defer to unelected administrative agencies' interpretations of the congressional laws that govern them. The most important Supreme Court case that most non-lawyers have never heard of is the Court's 1984 decision in Chevron v. Natural Resources Defense Council, which held that executive agencies are entitled to judicial deference in interpreting statutes they have been tasked with administering. Scalia supported this standard — albeit less deferentially than many of his colleagues — but Gorsuch has questioned it. In a legal opinion last year, Gorsuch argued that the Chevron doctrine permits an executive agency to "enact a new rule of general applicability affecting huge swaths of the national economy one day and reverse itself the next" and "interpret the scope of its statutory jurisdiction one way one day and reverse itself the next," thus "undermining the separation between the legislative and executive powers that the founders thought essential." Legislation is currently making its way through Congress that would overturn Chevron, but even if that effort fails, a Justice Gorsuch should be a voice less deferential to the administrative state.
Democrats should take solace in Gorsuch's tendency to question the state in matters of criminal law, as well as his tendency to assert judicial authority over executive-agency rulemaking — at least to the extent that they are worried about overreaches under a Trump administration. Of course, many Senate Democrats will probably oppose the nomination, especially given the Republicans' refusal to hold confirmation hearings for President Obama's nominee, Merrick Garland. But the GOP now, as in 2016, controls the Senate majority, and there is little reason to believe that Gorsuch will not ultimately be confirmed — with or without a Democratic filibuster.
Scalia knew Gorsuch, who had taken him fly fishing in the Colorado Rockies. Gorsuch was on the ski slopes last February when he heard of his friend's passing. "I am not embarrassed to admit that I couldn't see the rest of the way down the mountain for the tears," Gorsuch remarked in a speech last spring. But today, somewhere up there, the late justice is probably smiling.
James R. Copland. "A Great Pick." City Journal (February 1, 2017).
Reprinted with permission from City Journal.
James R. Copland is a senior fellow at the Manhattan Institute and director of Legal Policy. In those roles, he develops and communicates novel, sound ideas on how to improve America's civil- and criminal-justice systems. He has testified before Congress as well as state and municipal legislatures; and has authored many policy briefs, book chapters, articles and opinion pieces in a variety of publications, including the Harvard Business Law Review and Yale Journal on Regulation, the Wall Street Journal, National Law Journal, and USA Today. He holds a J.D. and an M.B.A. from Yale, where he was an Olin Fellow in Law and Economics; an M.Sc. in the politics of the world economy from the London School of Economics.Copyright © 2017 City Journal
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