Neil Gorsuch has all the conservative credentials of the man he will almost certainly replace on the U.S. Supreme Court. He is an originalist, devoted to the belief that the Constitution means what it said in the 18th century. He supports an expansive notion of “religious liberty,” upholding, for example, a private employer’s right to withhold insurance coverage for contraception. He is sympathetic to the anti-abortion movement. He favors keeping a tight rein on regulatory agencies like the Environmental Protection Agency and is likely to be a reliable vote for corporations over consumers. He also is a beautiful and witty legal writer, as was Antonin Scalia.
What Gorsuch won’t bring to Washington from the 10th U.S. Circuit Court of Appeals in Denver is the nasty edge Scalia often displayed in his opinions, dissents, and public appearances. From among his reported short list of candidates, President Trump could not have picked someone more likely to get confirmed by the Senate than the affable, measured Gorsuch, who clerked for both Byron White and Anthony Kennedy, two justices whose ideology has been famously difficult to pin down.
Here’s an excerpt from his 2006 confirmation hearing before the Senate Judiciary Committee when he was named to the 10th Circuit. “I resist pigeon holes,” he candidly told the senators a decade ago. “I think those are not terribly helpful, pigeon-holing someone as having this philosophy or that philosophy. People do unexpected things and pigeon holes ignore gray areas in the law, of which there are a great many.”
On criminal law it is hard to identify much ideological space between Gorsuch and Scalia. Gorsuch’s presumed ascension to the high court won’t likely change the balance (and 5-4 conservative majority) that existed there for decades before Scalia’s death. This doesn’t just mean that Gorsuch will side with prosecutors and police in the vast majority of cases, it also means that, like Scalia (and unlike, say, Justice Samuel Alito), Gorsuch will side with criminal defendants, if he believes their arrests violated Fourth Amendment protections against unreasonable search or seizure.
Like Scalia, Gorsuch strongly supports the death penalty and has consistently voted against death row inmates seeking relief at the 10th Circuit. What is less clear is what Gorsuch thinks of the cutting-edge issues in capital law — issues like lethal injection secrecy, judicial overrides, and the execution of intellectually disabled prisoners. Like Scalia, Gorsuch is an ardent supporter of a broad reading of the gun rights embodied in the Second Amendment. Like Scalia, he believes in broad immunity for police officers, even when their actions result in the death of civilians.
Gorsuch also hits a favorite conservative note when it comes to “overcriminalization,” decrying the explosion of regulatory crimes “buried in the federal register” which he says routinely fail to give individuals (and corporations) fair notice that their conduct runs afoul of the law. This suits the “mens rea” reform movement that so many Republicans in and out of government now support, asserting that a criminal conviction requires criminal intent.
There are several areas of criminal law where it is unclear how Gorsuch will come down. We don’t know what Judge Gorsuch thinks of the practice of solitary confinement, especially as it is applied to teenagers, regarded by some critics as a form of torture. We don’t know exactly where he stands on the right to counsel at a time when we are more aware than ever of the toll the “ineffective assistance of counsel” takes on indigent defendants. And we do not know for sure where he stands on free speech and free press rights at a time when they seem more vital than ever.