President Trump last month nominated Judge Neil Gorsuch of the United States Court of Appeals for the 10th Circuit to succeed the late Antonin Scalia. But just who is Judge Gorsuch? What do we know about him?
First, it is important to point out that Gorsuch is not the first nominee to fill the seat left vacant after Scalia’s death. President Obama nominated Merrick Garland, chief judge of the United States Court of Appeals for the District of Columbia in March of last year, but Senator Mitch McConnell, the majority leader, announced that the Senate would not hold hearings on his nomination because the presidential primary season had already started. Let’s wait to see who wins the election. he said, and let the people decide. As it turned out, Garland’s nomination now holds the record for Senate’s inaction on a Supreme Court nomination: 273 days. It will never be broken.
Since 2006, Gorsuch, who is 49 years old, has served on the 10th Circuit, which is housed in Denver, Colorado, his hometown. He clearly is one smart guy. A graduate of Columbia University and the Harvard Law School, he holds a doctorate in legal philosophy from Oxford. He served in President George W. Bush’s Justice Department and practiced law in Washington, D.C., before his nomination to the circuit court.
Gorsuch describes himself as a follower of the doctrine of originalism, which is precisely how Scalia identified his judicial philosophy. Originalism requires judges to interpret all provisions of the Constitution through the eyes of those who drafted and ratified them. In other words, the goal is to determine what they originally meant or understood when they added a provision to the document.
The countervailing interpretative approach is the doctrine of the living constitution. This means judges look at a provision through their own eyes, or in other words, what meaning or understanding do they, say, in the twenty-first century, bring to the provisions.
A current example: the eighth amendment’s prohibition of cruel and unusual punishments. In 1791, when this provision was added, capital punishment was not considered cruel or unusual. Hence, an originalist would argue that capital punishment cannot violate the amendment because the framers understood that the death penalty was an acceptable punishment for certain crimes. On the other hand, the follower of the living constitution would contend that in today’s world, it is time to think about prohibiting capital punishment because it does not act as a deterrent, there have been too many trial errors leading to 150 exonerations of death-row prisoners, and it has a racial bias against minorities.
In a 2015 case, Justices Scalia (originalist) and Breyer (living constitutionalist) debated this precise question (Glossip v. Gross).
Gorsuch has not ruled on a death penalty case, but we can get an idea of his thinking from his doctoral dissertation, which was published as a book entitled The Future of Assisted Suicide and Euthanasia (Princeton University Press, 2006). There, he argued against physician-assisted suicide for the terminally ill, which the Court ruled the same year was an issue to be decided by the states. For Gorsuch, no private party should ever be permitted to take away a life: logically, this would mean that not only is physician-assisted suicide impermissible, but the death penalty would be perfectly constitutional. Capital punishment is not, after all, conducted by private parties, but by the state.
While he has not ruled on abortion, Gorsuch would likely rule against a woman’s right to abort a fetus, given, once again, that this would be undertaken by private parties, not the state.
Of course, this is all speculative, but these conclusions seem reasonable: he is a social conservative who may well match many of Scalia’s positions. On the other hand, there are several issues he has ruled on and they give us some insights into his views.
Take, for example, first amendment rights. In a concurrent in a case involving parody, Gorsuch agreed that a student at a university could not be sued for making fun of a professor on an internet journal. He followed the precedent his own circuit court laid down in 1982 that protected parody from civil actions (the actual charge was “criminal libel”).
Or how about the issue of a grade-school student being disruptive? A historic principle is that juveniles do not enjoy the same rights as adults. Students in elementary, middle, or high school have fewer rights because they are under the protection of school authorities who must maintain school decorum and discipline. The legal theory is known as in loco parentis, which means that schools act as surrogate parents while children are in school.
In this case, a cutup kid spent the morning making fake burps to the vast laughter of his friends, but to the outrage of his teachers. They decided not to deal with him themselves. Instead, they called the school police officer who took the kid off in handcuffs. Gorsuch wrote that this was ridiculous. He quoted Charles Dickens’ Oliver Twist, noting that sometimes the law can be “a ass—a idiot.”
Meantime, religious liberty has become a very hot topic since the Supreme Court ruled that same-sex marriages are legal across the United States (Obergefell v. Hodges, 2015). Many very religious florists and bakeshop owners, for example, have declined to provide flowers or wedding cakes for same-sex weddings, claiming that to do so violates their religious principles. The same has been true for employers providing contraception options for their employees with their health insurance packages. In 2013, the 10th Circuit dealt with Hobby Lobby Stores v. Sebelius just on this issue.
Although the Green family that owns these stores are very religious, they have said they do not oppose contraception. However, they are against abortion and for them, some contraception procedures are too close to abortion (they are called abortifacients). The key example is the morning-after pill that a rape victim may take, which for the Greens is really an abortion, not a contraceptive. So, they did not want to offer contraception as part of their health-care package. The 10th circuit ruled in favor of Hobby Lobby: religious freedom trumps health care. Gorsuch agreed. When the case was appealed, the Supreme Court upheld the 10th circuit’s decision.
In criminal matters, it appears Gorsuch votes against prisoner petitions and in favor of the state. A prisoner asked for an appeal of his conviction, but his lawyer filed the appeal past the deadline. The 10th Circuit and Gorsuch rejected his argument that his lawyer was incompetent. He decided other criminal cases along the same lines.
Finally, there is the growing controversy over class action suits. These suits are necessary when, for example, individual employees of a very large corporation are unable to file a lawsuit against the company because it is so expensive. One person going up against a huge corporation hardly makes any sense. And yet, Scalia led the Supreme Court to move against class action lawsuits, claiming that the plaintiffs never really bring the same issue to court. And sometimes, the minimum amount of money in dispute ($5 million under federal law) has not been met.
Gorsuch has pretty much followed this approach in his own jurisprudence. For example, he dealt with a complaint from prisoners in El Paso County in Texas that the prison lacked mental health care. They claimed this violated their constitutional rights. Gorsuch argued that the mental health issues among the prisoners were so different, the class action made no rational sense. In fact, he even went further and seemed to undermine most class action suits in the future.
We may not know the full range of Judge Gorsuch’s jurisprudence until he is confirmed and serves on the Supreme Court. But it is a pretty good bet that he will fall well into the Scalia mold. When he joins the Court, it will return to the balance it had before Scalia’s death in February of last year. Four conservative justices, four liberal ones, and one swing vote. Neil Gorsuch’s confirmation hearings begin March 20
Article By:
Dr. J Fruchtman
TU Facility and Advisor