Dissents inspire Gorsuch backers

Newest justice ready to ‘jump into the deep end’

WASHINGTON – Neil Gorsuch had been a member of the Supreme Court for exactly 11 weeks when he made clear in a single day what type of justice he would be.

The court struck down an Arkansas law that treated same-sex couples differently than opposite-sex couples on their children’s birth certificates. Gorsuch dissented.

The court refused to consider a challenge to the Department of Veterans Affairs’ system for evaluating disability claims. Gorsuch dissented.

The court declined to hear a challenge to a California law limiting who can carry a concealed gun in public. Gorsuch dissented.

And the court turned aside a challenge to the meager sum Mississippi paid when it converted a former landowner’s property into a park. Gorsuch said the justices should hear a similar case “at its next opportunity.”

Thus it was that on the last day of its 2016-17 term — as the court addressed gay rights, government power, gun ownership and government takings — Neil McGill Gorsuch announced to the legal world that he would not go along to get along.

“He came to the court more ready to jump into the deep end than a lot of recent nominees,” says Jonathan Adler, a law professor at Case Western Reserve University School of Law.

Gorsuch has been jumping in ever since.

“What you’re seeing is a justice who believes the court has a responsibility to decide cases,” says Leonard Leo, executive vice president of the Federalist Society and an outside adviser to President Trump on judicial nominations. “I don’t see in Justice Gorsuch the same kind of incrementalism that some of the other justices have.”

In the nine months since that declaration of independence, Gorsuch has receded from the headlines he commanded as Trump’s first Supreme Court nominee. But he has not retreated from his core beliefs that the court should favor the words contained in the Constitution and federal laws over the supposed expertise of the federal bureaucracy.

Nor has he disappeared from the public eye following some early, often unfavorable reviews: that he was im-

pudent toward colleagues, pedantic in his rhetoric, and tone-deaf to criticism that he was cozying up to conservatives.

“Tonight, I can report that a person can be both a publicly committed originalist and textualist and be confirmed to the Supreme Court,” he told a Federalist Society audience in November.

It helps to have a vacancy — in this case, one created by the unexpected death in 2016 of the high court’s conservative leader, Antonin Scalia, who brought adherence to the Constitution and legal texts into the mainstream.

It took 14 months for the White House and Congress to settle on a successor. President Barack Obama’s nominee, federal appeals court Judge Merrick Garland, was blocked by Senate Republicans before Trump nominated Gorsuch from a list of 21 potential choices on Jan. 31, 2017. It took another 10 weeks, $17 million in outside spending and a Senate rules change to win confirmation without the 60 votes previously required to reach the Senate floor.

Despite that, Gorsuch emerged from the confirmation battle relatively unscathed, a tribute to his impeccable credentials as a Denver-based judge on the 10th U.S. Circuit Court of Appeals. He had degrees from Columbia, Harvard Law and Oxford and a high-level stint at the Department of Justice. His mother, Anne Gorsuch Burford, had been in President Ronald Reagan’s Cabinet.

Gorsuch took his seat four months short of his 50th birthday, becoming the first former Supreme Court law clerk to serve alongside his ex-boss, Justice Anthony Kennedy. In short order, he was peppering lawyers with questions such as “Where in the statute is that provided?” and admonishments such as “I look at the text of the Constitution, always a good place to start.”

“I really don’t think we could have seen a justice any more committed to textualism and originalism than he is,” says Randy Barnett, a professor at Georgetown University Law Center. “He has lived up to very hard expectations.”

Liberals saw his loud entrance differently, decrying his legal philosophy, his behavior on the bench, and his writing style. Ian Millhiser, a senior fellow at the Center for American Progress, warned early on that “Gorsuch will make liberals miss Scalia.”

In his initial opinions, concurrences and dissents, Gorsuch has done just that. When the court allowed part of Trump’s immigration travel ban against majority-Muslim countries to be implemented temporarily, he said he would have green-lighted it in full.

The U.S. Chamber of Commerce has filed friend-of-the-court briefs in 10 cases decided since Gorsuch came on the court, and he’s taken their side nine times with most of his colleagues.

“It does seem that he is being that reliable, pro-corporate vote that business thought he would be,” says Elizabeth Wydra, president of the liberal Constitutional Accountability Center.

Gorsuch has teamed up with Justice Clarence Thomas, the court’s most conservative member, in several dissents. But when the court refused to hear a challenge to California’s 10-day waiting period for gun purchases, Gorsuch surprised some conservatives by not joining Thomas.

Neil Gorsuch