Gorsuch off to excellent start in filling Scalia’s shoes

IN nominating Neil Gorsuch to the U.S. Supreme Court, President Trump said he was looking for a jurist in the mold of the man Gorsuch would replace, the late Justice Antonin Scalia. Gorsuch didn’t disappoint during his first term.

Scalia was the leading conservative on the bench, and earned a reputation during his 30 years for his wonderful writing style. Gorsuch brought a solid conservative record with him from the 10th Circuit Court of Appeals in Denver, and a deep appreciation for the English language.

Both were on display during the term that ended last week.

Oliver Roeder and Harry Enten, writers for the website FiveThirtyEight.com, noted that based on his first 10 weeks on the court (he joined the bench in April), Gorsuch may wind up settling to the right of Scalia.

“In each of the 15 cases he’s weighed in on so far, Gorsuch has sided with the court’s single most conservative member, Justice Clarence Thomas,” they wrote last week. “More than that, he’s joined every concurring opinion that Thomas has issued so far. That is, he didn’t just agree with Thomas on the outcomes of the case but also with the reasoning by which those outcomes were reached.”

Roeder and Enten noted Gorsuch’s involvement was critical in two cases, Davila v. Davis and California Public Employees’ Retirement System v. ANZ Security. The former was a blow to opponents of the death penalty, and the latter made it harder to file some class-action claims. Both those votes were 5-4.

In last week’s decision by the court to allow Trump’s travel plan to take partial effect while the court hears the case, Gorsuch “wanted the court to go even further in allowing all of the travel ban to go into effect,” Roeder and Enten pointed out.

John O. McGinness, a constitutional law professor at Northwestern University School of Law, said Gorsuch showed himself to be “a textualist in reading statutes, a serious originalist in interpreting the Constitution, and an adherent of judicial restraint.”

The latter was evident, McGinnis said, in Gorsuch’s concurring opinion in a case that reversed a lower court ruling over jury instructions. While agreeing with the court, Gorsuch “complained that the Court’s majority then proceeded to craft instructions on the contours of the jury instruction …” McGinnis wrote at City Journal. It’s better to let lower courts decide those details, Gorsuch said.

“The essence of judicial restraint is judicial modesty,” McGinnis wrote. “The Supreme Court should decide no more than is strictly necessary because it is likely to make mistakes on matters that are not directly before it.”

Gorsuch displayed “an engaging style that will allow him to reach over the heads of Court watchers and critics to the people,” McGinnis said, calling him “a jurist whose every opinion is a lucid primer on the civics of our governance.”

Scalia left a giant void. Gorsuch is off to an excellent start in filling it.