President Donald Trump announced Neil Gorsuch will be nominated to take the “Scalia Seat” on the U.S. Supreme Court. At 49, he will be the youngest Supreme Court nominee in 25-years. He is best known for upholding religious rights in court battles involving the Affordable Health Care Act (aka Obamacare). Gorsuch was appointed to the federal bench by President George W. Bush in 2006 as a member of the 10th Circuit Court of Appeals in Denver.
According to SCOTUSblog, Gorsuch “is celebrated as a keen legal thinker and a particularly incisive legal writer, with a flair that matches — or at least evokes — that of the justice whose seat he would be nominated to fill.” In fact, in a study called Searching for Justice Scalia: Measuring the ‘Scalia-ness’ of the Next Potential Member of the U.S. Supreme Court, Gorsuch earned high marks in several categories important to the late Justice Scalia, including “originalism” and “textualism.” Like Scalia, Gorsuch has gained notoriety for his lively judicial writing style
On Religious Freedom
As an appellate judge, Gorsuch participated in the high profile religious test cases of Hobby Lobby Stores v. Sebelius and Little Sisters of the Poor Home for the Aged v. Burwell.
Gorsuch argued the the conception mandate of the ACA (Obamacare) was a burden on the religious free exercise rights in violation of the Religious Freedom Restoration Act of 1993. In Little Sisters, Gorsuch took the position that the 10th Circuit majority failed to show sufficient deference to the tenants of the Little Sister‘s beliefs and the Supreme Court later mostly agreed with this decision — remanding it for a solution between the parties and the Court on how to accommodate the Little Sisters beliefs while still giving rights to employees to receive contraception coverage.
Like Scalia, Gorsuch is also known to interpret criminal laws in a manner that avoid criminalizing innocent conduct. The most significant example in the area, according to SCOTUSBlog, is the 10th Circuit opinion in 2012 0f United States v. Games-Perez. In that case, Gorsuch pushed the opinion that a conviction of “felon of in possession of a firearm” could be upheld so long as the defendant knew he possessed a gun. Whether he knew he was a felon was irrelevant to Gorsuch. This is an important issue because a conviction for a felon in possession of a gun can have a major impact on sentencing of what some might consider to be an otherwise minor crime.
According to The New York Times, Judge Gorsuch has not written extensively on the Second Amendment. However, given his other favorable comparison to Scalia, it seems likely he would handle the Second Amendment cases in a manner similar to how Scalia did.
Conservative commentator and editor of HotAir Ed Morrissey sent out a series of tweets when Gorsuch’s name first surfaced as a contender saying that he believed Judge Gorisuch would protect the sanctity of life and Catholics especially should not be worried about how he might rule on abortion.
.@bbmoe However, ch 10 leaves little doubt about how Gorsuch would see laws such as the Born Alive Infant Protection Act. Compelling.
— Ed Morrissey (@EdMorrissey) January 21, 2017
In fact, Catholics would be very, very comfortable (and familiar) with Gorsuch’s reasoning on sanctity-of-life basis for equal treatment.
— Ed Morrissey (@EdMorrissey) January 21, 2017
Gorsuch’s “textulaism” approach also likely means he will vote to uphold the death penalty, like Scalia. However, that also means he may be somewhat helpful to criminal defeats in other areas where the “originalism” philosophy sometimes aligns with the rights of criminal defendants. Especially, when police overstep their constitutional limitations to the detriment of criminal defendants.
Different from Scalia?
The only area scholars have picked up on where he differed with Scalia was in the case of Gutierrez-Brizuela v. Lynch, a case where Gorsuch criticized the so-called Chevron deference, an administrative law doctrine that Scalia long championed.
Gorsuch spoke on many occasions about his thoughts on the law, including on behalf of the Federalist Society in in 2013. During the speech the judge discussed the law’s irony’s and civil discovery.
After Scalia’s death, Gorsuch said Scalia’s greatest achievement was his emphasis on the differences between legislators and judges. Gorsuch said, “Judges should instead strive to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”
In addition to his time on the bench, Gorsuch taught law at the University of Colorado at Boulder.
Gorsuch attended Columbia University, earning a B.A. in 1988 and then on to Harvard Law School, earning his Juris Doctorate in 1991. He also received a prestigious Marshall Scholarship to attend Oxford where he earned a Ph.D. studying legal philosophy.
After law school, Gorsuch clerked for Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit and then moved on to clerk for Justices Byron White and Anthony Kennedy at the Supreme Court.
He worked in private practice from 1995 — 2005, before being tapped to serve in Bush 43’s DOJ as the principal deputy to the associate attorney general and acting associate attorney general.
During the announcement on Tuesday, President Trump said other than the defense of the nation, “the most important decision a President of the United States can make is appointment of a Supreme Court Justice.”
The president also referred to Gorsuch as “having outstanding legal skills” and a “brilliant legal mind” who has previously received bipartisan support” when appointed to the 10th Circuit.
Judge Gorsuch then took the lecture and after thanking the president and vice president, he pledged, if confirmed, “to do all her powers commit to be a faithful servant of the Constitution and laws of this great country.”
He also said he viewed the Supreme Court as “vital to the protection of the people’s liberties under law and to the continuity of our Constitution, the greatest charter of human liberty the world has ever known.”
Finally, Judge Gorsuch made special mention of the man he hopes to replace — Justice Antonin Scalia — calling him a “lion” of the law.
[image via screengrab]