High court’s new justice still daring to dissent
Gorsuch wasn’t reserved in rookie year on bench
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 samesex couples differently from 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, 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.”
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.
It took 14 months for the White House and Congress to settle on a successor to conservative Justice Antonin Scalia, who died in 2016. Trump nominated Gorsuch on Jan. 31, 2017. It took an additional 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.
Gorsuch emerged from the confirmation battle relatively unscathed, a tribute to his impeccable credentials as a Denver-based judge on the U.S. Court of Appeals for the 10th Circuit. 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 decry 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.”
The U.S. Chamber of Commerce has filed friend-of-the-court briefs in 10 cases decided since Gorsuch came on the court last April, and he’s taken its side nine times, along 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’s efforts may be driven more by judicial philosophy than ideology. His devotion to the balance of powers outlined in the Constitution will make him a force for cutting back on the power of what conservatives call the “administrative state.”
“I think Justice Gorsuch would want to see courts be more skeptical of how much power the bureaucracy has and to require Congress to pass more precise laws,” says Josh Blackman, an associate law professor at South Texas College of Law.