Trump's originalist, Neil Gorsuch, finds his place

Neil Gorsuch slipped out his Colorado home a year ago to race to Washington and become President Donald Trump's first...

Posted: Apr 8, 2018 5:25 AM
Updated: Apr 8, 2018 5:25 AM

Neil Gorsuch slipped out his Colorado home a year ago to race to Washington and become President Donald Trump's first pick in a bid to reshape the judiciary.

He had a glistening resume and a decade of experience on the federal bench, but a few problems: He had only packed two ties, one shirt was frayed and about 70 senators were waiting to meet him.

"He packed quickly and went to Washington for the announcement, but he wasn't prepared for how fast things would move," said Michael Trent, one of Gorsuch's childhood friends who rushed out to buy the future justice some extra shirts.

As an appeals court judge, Gorsuch did not have an extensive wardrobe. "And if his shirts were frayed nobody noticed because he was wearing a robe," Trent said, laughing.

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After a whirlwind of courtesy visits on Capitol Hill, Gorsuch survived a confirmation process so contentious that Senate Republicans changed the rules to get him over the line, eliminating the 60-vote threshold needed to break a filibuster.

Days later, he took the bench and immediately wrote or joined opinions that would delight conservatives and fill liberals with foreboding.

No one could argue that Gorsuch has been slow out of the gate.

Now, as he approaches the end of his first full term on the bench, a more robust view of his jurisprudence is about to emerge.

So far, he has grabbed early opportunities to articulate and rearticulate his judicial philosophy, changed the dynamic on the bench, and even managed to ruffle a few feathers.

At his first State of the Union address in January, the President did more than praise Gorsuch. He said that his nominee's conservative judicial philosophy would serve as a template for future nominees.

"We are appointing judges who will interpret the Constitution as written," the President said. It was all that judicial conservatives - who seek to fill the benches with judges in the mold of the late Justice Antonin Scalia -- could hope for. Like Scalia, Gorsuch believes the Constitution should be interpreted based on its original public meaning. In legalese, it's called originalism, or textualism.

But Trump's praise that night was met with a stony glare as the cameras panned to Gorsuch. The rookie justice -- however awkwardly -- wanted to send a message that he was now a part of a separate branch of government and was going to chart his own course. He only changed his demeanor when the liberal Justice Elena Kagan leaned over and whispered something in his ear.

Gorsuch's critics say the new justice already tipped his hand, citing, for instance, the fact that he'd cast a preliminary vote in favor of a version of Trump's controversial travel ban.

"Notwithstanding the five second glare to the President, I don't think there is anything in Justice Gorsuch's actual record so far that would demonstrate judicial independence," said Christopher Kang, who served as deputy counsel to President Barack Obama.

But Carrie Severino, of the conservative Judicial Crisis Network, calls Gorsuch's first year nothing short of "outstanding" and says she believes he will eventually expand Scalia's legacy.

Indeed, at oral arguments, Gorsuch's questions suggest that he sees the law at times through a Scalian lens.

One of the biggest issues of the term, for example, concerns partisan gerrymandering. The justices appear deeply divided about whether they can or should come up with a standard to decide when politicians go too far in using political motives to draw congressional districts. In 2004, Scalia said that courts should stay out.

At oral arguments in a case challenging Republican-drawn maps in Wisconsin, Gorsuch seemed to echo that sentiment.

"Maybe we can just for a second, talk about the arcane matter, the Constitution," Gorsuch said to a lawyer representing those challenging the Wisconsin maps. "Where exactly do we get authority to revise state legislative lines?"

Professor Rick Hasen, of the University of California, Irvine School of Law, who has penned a new book on Scalia, says the exchange highlights Gorsuch's fidelity to originalism.

"Like Scalia," Hasen said, Gorsuch believes "other methodologies would unconstitutionally turn judges into legislators."

In another case, Gorsuch hinted that he might side with the liberals in a dispute concerning a provision of law that requires the mandatory removal of some immigrants who have committed crimes.

But even in agreeing with liberals, he could be in line with Scalia's jurisprudence. Scalia did tend to side with the left side of the bench when it came to the vagueness of statutes used to convict criminal defendants.

And there is some indication that Gorsuch has independent views when it comes to the 4th Amendment.

In November, several of the justices appeared skeptical of the Trump administration's argument that it didn't need a warrant when it collected locational data from an individual's cell phone over an extended period of time. But while his colleagues expressed privacy-based concerns, Gorsuch looked at the case from a different perspective and questioned whether the issue should be decided on trespass grounds.

Although vocal at most oral arguments, sometimes Gorsuch leaves court watchers hanging.

His vote will be critical in a case concerning the future of public sector unions, but he did not ask a single question at arguments. The same was true for another hot button case about Ohio's method for purging voters from its rolls.

Gorsuch's thoughts on those issues may only be apparent at the end of June when all the rulings are in.

As the junior-most justice, Gorsuch is unlikely to be assigned any blockbuster majority opinions in the near future. But in one below-the-radar opinion issued in January, he wrote a dissent that featured sweeping language about federalism. Gorsuch admitted that the court was only interpreting a "small statute" but feared that the majority opinion was "no small departure from our foundational principles of federalism."

He chided the majority for wandering "so far from the idea of a federal government of limited and enumerated powers" and ended the opinion with a flourish: "What boundaries remain then?"

Although the language in the opinion -- joined by Justices Clarence Thomas, Anthony Kennedy and Samuel Alito -- seemed loftier than the case at hand, it was as if Gorsuch was laying down a marker for the long game and a future when his dissents might be majority opinions.

Dynamics in the court

Each time there is a change on the court, the justices shift seats on the bench to reflect their seniority. But court watchers want to know if the addition of Gorsuch could produce jurisprudential shifts as well.

Even with his record as a lower court judge, some believed that once he took the bench Gorsuch might side more often with Kennedy, or Chief Justice John Roberts, a fellow conservative.

But that did not pan out for the few first cases decided. According to Scotusblog, by the end of last term Gorsuch sided with Justice Thomas 100 % of the time and Kennedy only 65%.

Out of the gate, Gorsuch, Alito and Thomas sided together in the travel ban vote as well as some death penalty cases.

Sen. Mazie Hirono, D-Hawaii, suggested that the troika were like "the three horseman of the apocalypse" in an interview on MSNBC.

This term, court watchers are wondering why the justices are taking an unusually long time to issue opinions. On April 16 they will begin the last sitting of the term, and they have yet to rule on a case that was argued on the first day. There have been some hints that might indicate hefty disagreements are taking place behind the scenes. The court currently is composed of five justices nominated by Republican presidents and four nominated by democrats. Divided opinions usually take longer to release as drafts circulate through chambers and those justices seeking a fifth vote discuss -- in writing -- possible edits.

In February, Justice Stephen Breyer took the rare step -- usually reserved for the end of the term when the most divisive cases come down - of reading a dissent in an immigration case from the bench.

And liberal Justice Ruth Bader Ginsburg gave a cryptic comment in an interview with CNN's Poppy Harlow.

"I respect all of my colleagues and genuinely like most of them," she said, not naming names.

But Gorsuch has spoken publicly about the warm reception he has received from his colleagues, especially Kennedy, whom he clerked for in the 1990s, calling it an "unexpected joy" to serve with him again.

Ruffled feathers

Gorsuch has not shied away from public events, even when one speech was scheduled - without his knowledge-- at the Trump International Hotel. He gave the speech, ignored the protestors who questioned his independence, and dedicated part of his talk that day to civility.

He was also criticized for appearing with Senate Majority Leader Mitch McConnell for a speech at the University of Louisville last September. It was McConnell who refused to hold hearings for Obama's nominee for the Scalia seat, Judge Merrick Garland, and thus made Gorsuch's nomination possible.

"I thought it was highly unusual and borderline inappropriate that Gorsuch went on what looked like a political appreciation tour," Kang said.

Even on the court, a place ruled by tradition, Gorsuch showed his independence early by eschewing the tradition of relying upon a pool of clerks to go through cert petitions. The system was set up to consolidate the work of reviewing hundreds of petitions. Alito has also chosen not to join the pool.

Gorsuch also drew criticism from twitter in March when members of the legal academia mocked his writing style as "clunky" at times. The hashtag "#Gorsuchstyle" was born.

His supporters, like Severino, dismiss the criticism.

"While elite law professors may think he is over explaining, in reality, he's not trying to reach that audience," she said. "He is trying to reach the average person."

It's worth noting that Gorsuch's language at times might send the average person to an academic book shelf, however. He did, after all, begin one dissent like this: "Chesterton reminds us not to clear away a fence just because we cannot see its point." He was referring to G. K. Chesterton -- a great English writer and philosopher -- but not an average household name.

In 2016, when he was still a judge on the 10th Circuit, Gorsuch spoke more plainly, this time echoing Socrates.

In a speech, he said that his model as a judge was to "hear courteously, answer wisely, consider soberly, and decide impartially."

In the coming weeks and months, his critics and his supporters will get their first full glimpse of those deliberations.

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