Gorsuch stands in shadow of a giant
1 year after Scalia’s death, the justice’s legacy looms large
When Supreme Court Justice Antonin Scalia delivered the Oliver Wendell Holmes Jr. Lecture at Harvard Law School on Valentine’s Day in 1989, he made quite an impression on a first-year law student from Colorado named Neil Gorsuch.
Scalia spoke on “The Rule of Law as a Law of Rules,” a legal philosophy in which judges limit their discretion by adhering to the letter of the Constitution, laws and court precedents. Just months later, he sided with the majority in declaring that flagburning was constitutionally protected speech — a result he would have opposed, he said countless times thereafter, “if I were king.”
“Judges are sometimes called upon to be courageous, because they must sometimes stand up to what is generally supreme in a democracy: the popular will,” he told the students. The lesson wasn’t lost on Gorsuch, who now stands on the precipice of succeeding Scalia — who died a year ago today — and extending his legacy decades
into the future.
If he is confirmed by the Senate, Gorsuch, 49, will represent the first generation of Supreme Court justices to have been influenced by Scalia’s rulings, writings and teachings while still in law school. He was chosen by President Trump in part because he is in the mold of Scalia, as several lawyers who served as law clerks to both judges attest.
“Though the critics are loud and the temptations to join them may be many, mark me down ... as a believer that the traditional account of the judicial role Justice Scalia defended will endure,” Gorsuch said in a speech last year at Case Western Reserve University School of Law, delivered shortly after the justice’s death at 79.
Scalia’s endurance has been in evidence ever since, not just in tributes that continued through the White House rollout of Gorsuch’s nomination, which featured his widow, Maureen. More important has been the perpetual references to his judicial philosophy in decisions throughout the court system — and embodied in judges like Gorsuch.
At the dedication of the Antonin Scalia Law School at George Mason University in October, Elena Kagan — who graduated from Harvard Law School months before Scalia reached the Supreme Court and later became its dean — lauded his strict adherence to the texts of laws and the Constitution.
“It changed the way almost all judges, and so almost all lawyers, think and talk about the law,” Kagan said. Put another way, she frequently says, “we’re all textualists now.”
Gorsuch stands near the head of that line — a judge who adheres to the four corners of existing statutes when considering the cases that come before him, regardless of where that leads him. But as a Westerner young enough to be Scalia’s son, Gorsuch also is very different in personal style and in some significant areas of substance.
Lauded by conservatives and lambasted by liberals, Scalia saw himself as a faithful servant of the Constitution and federal laws written by Congress, whether he agreed with them or not.
“If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach,” he said more than once. “If you like them all the time, you’re probably doing something wrong.”
Gorsuch probably could plead guilty to a degree of plagiarism when he said upon being nominated for Scalia’s seat, “A judge who likes every outcome he reaches is very likely a bad judge.”
Scalia’s favorite example was his decisive vote declaring flagburning a form of protected speech. For Gorsuch, one such example was his dissent from the 10th Circuit’s refusal to rehear a sex offender’s challenge to part of a federal law requiring registration with the government. He said it gave the Justice Department too much power to determine who had violated it.
“If the separation of powers means anything, it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce,” he wrote.
Gorsuch’s skepticism of executive branch power, however, is perhaps the area of greatest difference with Scalia. Whereas Scalia usually granted federal agencies deference to interpret vague laws and their own regulations, Gorsuch wrote last year that it was time for courts to assert more control.
“There’s an elephant in the room with us today,” he wrote about the judicial precedent that permits bureaucracies to “concentrate federal power in a way that seems more than a little difficult to square with the Constitu- tion of the framers’ design. Maybe the time has come to face the behemoth.”
That vivid writing style draws direct comparisons to Scalia, one of the best and most quoted writers ever to serve on the high court. Like Scalia before him, Gorsuch takes drafts from his law clerks, but “he will rewrite just about every word. He has his own writing style,” says Michael Davis, who clerked for Gorsuch in his first year on the bench and is now a close friend and colleague.
Matthew Owens, one of three lawyers who served as law clerks for both men, says Gorsuch’s opinions don’t sting like some of Scalia’s could.
“Judge Gorsuch is not exactly the same guy, particularly in temperament,” Owens says. “He’s not going to write these acerbic dissents.”
Michael Kenneally, who also clerked for both judges, says Gorsuch tends to be respectful during oral arguments but is no less incisive than Scalia was. “He will ask very tough questions,” Kenneally says.
And although Scalia did have great friends on the court — from Clarence Thomas on the right to Ruth Bader Ginsburg and Elena Kagan on the left — Gorsuch may work harder to produce majority coalitions.
“He is unfailingly charming and collegial and will try to build bridges,” says Michael McConnell, who served alongside Gorsuch on the 10th Circuit before becoming director of the Constitutional Law Center at Stanford Law School.