By Radley Balko -- Let’s have a civil liberties-centric look at Neil Gorsuch, Trump’s nominee to replace the late justice Antonin Scalia.
As far as I’m concerned, the most important thing to look for in a Supreme Court justice right now is a willingness to stand up to executive power. For at least the next four years (in all likelihood), the White House will be occupied by a narcissist with a proclivity for authoritarianism. We aren’t yet two weeks in to Trump’s administration, and we’re already barreling toward one or more constitutional crises. Oddly and perhaps in spite of himself, of the three names said to be on Trump’s shortlist (Gorsuch, Thomas Hardiman and William Pryor), Gorsuch appears to be the most independent and has shown the most willingness to stand up to the executive branch. Here’s President Obama’s acting solicitor general, Neal Katyal, in the New York Times today:
In particular, he has written opinions vigorously defending the paramount duty of the courts to say what the law is, without deferring to the executive branch’s interpretations of federal statutes, including our immigration laws.
In a pair of immigration cases, De Niz Robles v. Lynch and Gutierrez-Brizuela v. Lynch, Judge Gorsuch ruled against attempts by the government to retroactively interpret the law to disfavor immigrants. In a separate opinion in Gutierrez-Brizuela, he criticized the legal doctrine that federal courts must often defer to the executive branch’s interpretations of federal law, warning that such deference threatens the separation of powers designed by the framers.
A proven record of standing up to the executive branch when it oversteps its authority on immigration — that seems pretty important and relevant right now.
Katyal’s passage above also references the Chevron deference, a doctrine under which the courts defer to regulatory agencies’ interpretations of law unless those interpretations are unreasonable. Gorsuch has been critical of the doctrine. As a libertarian, I think that’s generally a good thing. The deference is premised on the notion that the executive is more subject to democratic checks — if we don’t like the policies of one president, we can vote in a new one. But the non-political regulatory agencies can still wield a lot of power, and the courts ought to serve as a check on them. But even progressives who might be troubled by Gorsuch’s skepticism of deference to regulatory agencies should keep in mind that we’re now in the Trump era. Not only will Trump be staffing those agencies and setting policy for them, but also he’s more likely than any recent president to staff them with appointees with little respect for previous norms. Recall that during the transition, Trump’s team rather forebodingly asked regulatory agencies for lists of careerists who work on issues such as climate change. Moreover, while progressives may be worried by what Gorsuch’s skepticism of the Chevron deference means for agencies such as the Environmental Protection Agency or the Food and Drug Administration, his record shows that of a judge willing to apply it to an agency such as the Department of Homeland Security. Again, that’s important right now.
His skepticism of executive branch power extends even to third-rail criminal-justice issues such as sex crimes. From CNN’s write-up of Gorsuch’s key rulings:
In this [United States v. Nichols], in a dissent from the full 10th Circuit’s refusal to rehear a three-judge ruling with which he disagreed, Gorsuch strongly objected to how much regulatory power a federal statute — the Sex Offender Registration and Notification Act (SORNA) — gave to the Justice Department to apply its rules to those guilty of sex crimes predating the act’s enactment.
In his words, “the framers of the Constitution thought the compartmentalization of legislative power not just a tool of good government or necessary to protect the authority of Congress from encroachment by the Executive but essential to the preservation of the people’s liberty …
On the Fourth Amendment, Gorsuch’s record is also encouraging, particularly for a nominee from a president with Trump’s blustery law-and-order rhetoric. Despite his reputation, Scalia was often very good on the Fourth Amendment. Gorsuch’s limited record at least suggests that he’d continue in that vein. In United States v. Carlos, he wrote a dissent to a majority opinion holding that police did not violate a suspect’s Fourth Amendment rights by approaching and knocking on his door despite several “No Trespassing” signs prominently posted on the property. Reason’s Damon Root writes of Gorsuch’s opinions in these cases:
Gorsuch demonstrated admirable and reassuring judgment in these cases. Not only did he cast a principled vote against overreaching law enforcement, he cast a principled vote against the overreaching executive branch. It’s not difficult to imagine Gorsuch imposing the same severe judicial scrutiny against the misdeeds of the Trump administration.
In United States v. Ackerman, Gorsuch argued that when the National Center for Missing & Exploited Children searched a man’s laptop, it was acting as a government agent. Even though the search turned up child pornography, Gorsuch found that search unconstitutional.
Gorsuch is perhaps most known for his decision in the Hobby Lobby case, in which he wrote a strong opinion denouncing the birth-control mandate in the Affordable Care Act. Whether you think that’s a plus or a minus obviously depends on whether you prioritize reproductive rights or religious freedom. But even if you’re bothered by his opinion in that case, Gorsuch’s championing of religious freedom does at least seem to be careful and principled, and not partisan toward Christianity. In Yellowbear v. Lampert, a majority of his fellow appeals court judges ruled that a federal statute required the state of Wyoming to grant a Native American prisoner access to a sweat lodge on prison grounds. Gorsuch went farther, arguing that even prisoners still retain a right to practice their religion.
Gorsuch is a critic of “overcriminalization,” or the massive and growing federal criminal and regulatory codes. I think that’s a good thing. The Volokh Conspiracy’s Ilya Somin points out that he has history of ruling that criminal laws should be read narrowly, with ambiguities resolved in favor of defendants. That, too, is a good thing.
I was also struck by Gorsuch’s acceptance speech. It was noticeably un-Trumpian. He was humble, reverent of institutions and deferential to the office for which he had just been nominated. Unlike the man who nominated him, he came off as someone devoted to law, not someone who believes he is above it.
There is, of course, the matter of Merrick Garland. Progressive activists are pushing Democrats to block Gorsuch at all costs, not because of his record, but because of the Republicans’ unprecedented denial of even a vote for Garland last year. I’ll just state before going any further that I think Republicans’ behavior with respect to Garland was unconscionable, as was Mitch McConnell’s promise to also block any nominees should Hillary Clinton win the election. It was a gross violation of democratic norms.
That said, this doesn’t seem like the time to revisit that fight. Trump has nominated a thoughtful judge who seems as likely to challenge the inevitable future Trump power grabs as any justice on the court. The added bonus here is that should it come to that, Trump would be opposed by his own nominee.