Neil Gorsuch was appointed to the United States Court of Appeals for the 10th Circuit by President George W. Bush on May 10, 2006, and confirmed shortly thereafter. Both his pre-judicial resumé and his body of work as a judge make him a natural fit for an appointment to the Supreme Court by a Republican president. He is relatively young (turning 50 this year), and his background is filled with sterling legal and academic credentials. He was a Marshall Scholar at the University of Oxford, graduated from Harvard Law School, clerked for prominent conservative judges (Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit, as well as Justices Byron White and Anthony Kennedy of the Supreme Court), and was a high-
ranking official in the Bush Justice Department before his judicial appointment. He 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, one study has identified him as the most natural successor to Justice Antonin Scalia on the Trump shortlist, both in terms of his judicial style and his substantive approach.
With perhaps one notable area of disagreement, Judge Gorsuch’s prominent decisions bear the comparison out. For one thing, the great compliment that Gorsuch’s legal writing is in a class with Scalia’s is deserved: Gorsuch’s opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why. Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making. He is an ardent textualist (like Scalia); he believes criminal laws should be clear and interpreted in favor of defendants even if that hurts government prosecutions (like Scalia); he is skeptical of efforts to purge religious expression from public spaces (like Scalia); he is highly dubious of legislative history (like Scalia); and he is less than enamored of the dormant commerce clause (like Scalia). In fact, some of the parallels can be downright eerie. For example, the reasoning in Gorsuch’s 2008 concurrence in United States v. Hinckley, in which he argues that one possible reading of the Sex Offender Registration and Notification Act would probably violate the rarely invoked non-delegation principle, is exactly the same as that of Scalia’s 2012 dissent in Reynolds v. United States. The notable exception is one prominent concurrence last August, in Gutierrez-Brizuela v. Lynch, in which Gorsuch criticized a doctrine of administrative law (called Chevron deference) that Scalia had long defended. Even here, however, there may be more in common than meets the eye.
Some of the most high-profile cases in which Gorsuch has cast a vote have involved the religion clauses of the Constitution (those prohibiting the establishment of religion and creating a right to free exercise), as well as congressional statutes expanding protection for religious adherents (known as RFRA and RLUIPA). Followers of the Supreme Court will recognize two recent cases in which Gorsuch participated on the 10th Circuit, Hobby Lobby Stores v. Sebelius and Little Sisters of the Poor Home for the Aged v. Burwell. In Hobby Lobby, Gorsuch wrote a concurrence in the en banc 10th Circuit that sided with the company and its owners. He stressed the need to accept these parties’ own conceptions regarding the requirements of their faith, and held (among other things) that they were likely to prevail on claims that the contraception mandate in the Affordable Care Act substantially burdened their religious exercise in violation of RFRA. This position was largely vindicated in the subsequent decision by the Supreme Court. Thereafter, in Little Sisters of the Poor, Gorsuch joined a group of 10th Circuit judges who dissented from denial of rehearing en banc when a panel of the court of appeals ruled against the Little Sisters on their RFRA claims about the same ACA mandate. There, again, the point was that the 10th Circuit had shown insufficient deference to the Little Sisters’ own articulation of the tenets of their religious beliefs. That position, too, was at least partially vindicated by the Supreme Court when it decided that the Little Sisters’ religious beliefs probably could be accommodated while still affording full and equal contraceptive coverage to their employees, and directed the parties and courts to consider such a solution on remand. Simply put, in cases that closely divided his court and the Supreme Court, Gorsuch has shown himself to be an ardent defender of religious liberties and pluralistic accommodations for religious adherents.
Gorsuch has also written or joined opinions – again, largely vindicated by the Supreme Court – that have criticized doctrines that limit religious expression in public spaces. In Summum v. Pleasant Grove City, in 2007, Gorsuch joined a dissent from denial of rehearing en banc in a case in which the 10th Circuit had limited the ability of the government to display a donated Ten Commandments monument in a public park without accepting all other offers of donated monuments. The subsequent Supreme Court decision reversing the 10th Circuit largely adopted the reasoning of that dissent. Gorsuch also has a pair of dissenting opinions in which he criticizes the “reasonable observer” test for establishment clause cases as far too likely to find impermissible endorsements of religion by the government when none was intended, and thus to prevent religious adherents from reasonably participating in public life. These cases are American Atheists Inc. v. Davenport, in 2010, and Green v. Haskell County Boad. of Commissioners, in 2009. The common thread in these cases is one that matters very deeply to conservatives: a sense that the government can permit public displays of religion – and can accommodate deeply held religious views – without either violating the religion clauses of the Constitution or destroying the effectiveness of government programs that occasionally run into religious objections. In his 2009 concurrence in Pleasant Grove City, Utah v. Summum, Scalia articulated very similar views. Gorsuch’s opinions on these issues are quite thoughtful, and demonstrate that he would be a natural successor to Scalia in adopting a pro-religion conception of the establishment clause.
Another area in which Gorsuch has written persuasively in a manner that closely echoes Scalia relates to how to interpret criminal laws correctly, so as to avoid criminalizing potentially innocent conduct. One of Gorsuch’s most notable opinions in this area also happens to overlap with the hot-button issue of gun ownership — although the case is not about the Second Amendment, and doesn’t involve anything like the typical gun-rights groups.
A federal criminal law prohibits the knowing possession of a gun by a felon. This law has given rise to a debate about how best to read its limitation to “knowing” violations: Does it apply whenever a felon knowingly possesses a gun, or must violators also know that they have been convicted of a felony? This matters, because lots of minor crimes might technically be felonies, and lots of dispositions that seem inconsequential (because they involve no jail time) might technically be felony convictions. And the penalties for violating this law can be very high. In United States v. Games-Perez, in 2012, Gorsuch urged the 10th Circuit to review its rule holding that it is enough to support a conviction that the defendant knew he possessed the gun, whether or not he knew he was a felon. The opinion is an example of Gorsuch’s strong commitment to textualism, and a severe critique of using legislative history — particularly to make criminal what might otherwise be innocent. Accordingly, it is easy to hear clear echoes of Scalia’s views regarding the proper reading of statutes — especially criminal statutes — as well as the importance of focusing on ordinary usage and linguistic rules.
A few examples make the resemblance even clearer. Take this sentence from Games-Perez: “For current purposes, just stating Capps‘s holding makes the problem clear enough: its interpretation—reading Congress’s mens rea requirement as leapfrogging over the first statutorily specified element and touching down only at the second listed element—defies grammatical gravity and linguistic logic.” Or this passage, which contains both an endorsement of Second Amendment rights and a classic Scalia principle about attaching mens rea requirements to the element that criminalizes innocent conduct:
Besides, even if the government could somehow manage to squeeze an ambiguity out of the plain statutory text before us, it faces another intractable problem. The Supreme Court has long recognized a “presumption” grounded in our common law tradition that a mens rea requirement attaches to “each of the statutory elements that criminalize otherwise innocent conduct.” … Together §§ 922(g) and 924(a)(2) operate to criminalize the possession of any kind of gun. But gun possession is often lawful and sometimes even protected as a matter of constitutional right. The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force.
Either of these passages would be perfectly at home in a canonical Scalia opinion about how to read the criminal law. And, it is worth noting, this means that Gorsuch, just like Scalia, is sometimes willing to read criminal laws more narrowly in a way that disfavors the prosecution – especially when the Second Amendment or another constitutional protection is involved.
Gorsuch, like Scalia, has not been a friendly vote for death penalty petitioners pursuing relief from their sentences through federal habeas. But it is important to recognize that, as in the case of Scalia, this makes plenty of sense in light of Gorsuch’s commitment to reading statutes according to their plain text. During the 1990s, Congress passed a statute called the Antiterrorism and Effective Death Penalty Act that – true to its name – was intended to limit federal habeas in order to make the death penalty easier to carry out. Strict readers of AEDPA are unlikely to find many cases in which a petitioner qualifies for relief. This is particularly true in the courts of appeals, where many of the death penalty habeas cases are uncontroversial —or at least not nearly as close as the cases that make their way to the Supreme Court. Whatever the source of the position, however, it is clear that Gorsuch’s position in death penalty cases is likely to be quite close to Scalia’s, and very unlikely to make the court any more solicitous of the claims of capital defendants.
Dormant Commerce Clause
Another area of the law in which Gorsuch has shown both his writing talent and his similarity to Scalia is in the application (and critique) of doctrines surrounding the so-called “dormant commerce clause.” These doctrines treat the commerce clause not only as a grant of power to Congress to make laws regulating interstate commerce, but as a kind of presumptive limitation on the power of states to make laws that either unduly burden or unfairly discriminate against interstate commerce, without regard to whether Congress has ever passed a law in the relevant area. Because — as its name suggests — the dormant commerce clause cannot actually be found in the text of the Constitution, Scalia eventually came around to the view that it should not be a thing, and refused to endorse any future expansions of the doctrine. For example, in 2015, in a dissenting opinion in Comptroller v. Wynne, Scalia stated: “The fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause.” Although a court of appeals judge lacks the same freedom to disparage and/or depart from existing Supreme Court precedent, Gorsuch’s opinions also reveal a measure of distrust towards unwritten constitutional provisions like the dormant commerce clause.
For example, a 2015 10th Circuit decision written by Gorsuch, Energy and Environment Legal Institute v. Epel, declined to apply the dormant commerce clause to strike down a clean-energy program created by Colorado on the grounds that it might negatively affect traditional energy producers outside the state. The opinion explains that this result is consistent with the limited reach of the dormant commerce clause’s “judicial free trade policy” even under existing precedent. But while acknowledging that lower courts must take the Supreme Court’s doctrine as they find it, Gorsuch’s opinion shows respect for the doctrine’s “[d]etractors,” like Scalia, who “find dormant commerce doctrine absent from the Constitution’s text and incompatible with its structure.” Though Gorsuch’s personal constitution seems to require him to write clearly about the many unclear aspects of the doctrine, his opinion plainly takes some joy in the act of demonstrating that not only does the dormant commerce clause not apply — the doctrine also doesn’t make much sense. That same instinct is present in a prominent concurrence last year in Direct Marketing Association v. Brohl, in which Gorsuch singled out one aspect of dormant commerce clause doctrine—the Quill rule that exempts out-of-state mail order sales from state sales tax—as an “analytical oddity” that “seems deliberately designed” to be overruled eventually. This opinion aligned him with Justice Anthony Kennedy (who has called for overruling Quill), and again with Scalia, who identified Quill as part of the “bestiary of ad hoc tests and ad hoc exceptions that we apply nowadays” under the dormant commerce clause.
The dormant commerce clause isn’t a particularly hot-button issue, nor does it have obvious liberal/conservative fault lines. But it’s noteworthy that criticism of the dormant commerce clause is of a piece with criticism of the “right to privacy” that undergirds the Supreme Court ‘s abortion jurisprudence, as well as other judge-made doctrines that do not have a strong connection to the constitutional text. Again, Gorsuch’s opinions seem to follow the lead of textualists and federalists like Scalia in expressing great skepticism towards such doctrines, which allow judges to strike down duly enacted local laws on the basis of vague principles that cannot be found in the concrete text of the national charter.
Finally, there is administrative law—the one area that seems to demonstrate some real distance between Scalia and Gorsuch. Last August, Gorsuch made real waves in the normally sleepy world of administrative law by advocating the end of a doctrine that has been tied closely to the functioning of the administrative state and the executive branch since the mid-1980s — a doctrine called Chevron deference. The basic idea behind Chevron is that, when Congress enacts a broadly worded statute whose precise contours are ambiguous, the courts should permit the federal agencies that are charged with administering the statute to enforce it in any manner that is not clearly forbidden. Scalia was a judge on the D.C. Circuit (which does more agency review than any other court), and he was a strong advocate for Chevron’s basic take on agency review and the flexibility that it preserved in the administrative state: He often warned that the consequences of efforts to limit or tinker with its model could be severe. Gorsuch’s recent opinions in Gutierrez-Brizuela — he wrote both the majority opinion and a concurrence to his own opinion to express his personal views on the doctrine — expressly urge: “We managed to live with the administrative state before Chevron. We could do it again.” Ironically, Gorsuch’s chief complaint about Chevron doctrine was something that would have been close to Scalia’s heart — namely, that it empowers agencies to take the power of statutory interpretation away from courts, and subjects judicial decision-making to administrative review, rather than the other way around.
Gorsuch’s opinion — in which he stakes out ground that few have sought to defend — is a very compelling read, and it is unfair to try to summarize it in a few sentences. But it seems quite clear that: (1) Gorsuch’s views on administrative law are meaningfully different from Scalia’s in a way that could be described as even more conservative; and yet (2) the difference is not as profound as one might think. Unlike Scalia, Gorsuch really does want to apply the basic Gorsuch/Scalia take on ordinary statutes to administrative statutes as well. He believes even these broadly worded enforcement statutes have objective meanings that can be understood from their texts; that it is the job of the courts to say what those laws mean and to tell agencies when they do not have the best reading; and that if the agency disagrees, the only proper recourse is for Congress to change the law or the Supreme Court to correct the error. Scalia, on the other hand, wanted to limit courts to the role of reviewing agency implementations of these kinds of statutes for clear error in order to prevent “ossification,” recognizing that the understanding of these kinds of laws might need to change from time to time to accommodate changing priorities among presidents and changing conditions on the ground.
The reason that difference is less pronounced than you might think is that Scalia’s take on Chevron was always a little different from others’, in part to address the very concerns that Gorsuch so clearly articulates. First, Scalia was much more willing than others to say that a particular agency position was beyond the statutory bounds, even when the words at issue in the statute were ambiguous (at least in isolation). For example, in MCI Telecommunications Group v. AT&T, in 1994, Scalia held that the term “modify” unambiguously excludes major changes. In fact, in a Duke Law Journal piece in 1989 Scalia once said strict textualists like him (and, say, Judge Gorsuch) would be less likely to find statutes ambiguous for purposes of Chevron because of their attention to the details of statutory text and their unwillingness to consider broad purposes and legislative history. Such an approach makes a statute’s delegation to agencies much narrower, notwithstanding Chevron. And second, Scalia wanted Chevron to apply all the time precisely to avoid a situation in which a court would give the statute its best reading and the agency could later revise that understanding with the benefit of newfound deference — one of Gorsuch’s chief complaints. In Gutierrez-Brizuela, Gorsuch criticized the Supreme Court’s 2005 decision in National Cable & Telecommunications Ass’n v. Brand X, which permitted an agency to bypass a Supreme Court decision through Chevron deference, echoing Scalia’s own dissent in Brand X, in which Scalia criticized the court for having adopted a version of Chevron that led to the spectacle of agencies bypassing Supreme Court readings of statutes.
In short, Gorsuch definitely has a different take from Scalia on the administrative state — one that grants it less power, and so accords even more closely with the conservative conception of small government. Indeed, this is an area in which Gorsuch is plainly a thought leader, expressing judicial sentiments many conservatives with similar concerns have rarely voiced, and which even Scalia might have bristled at. But given their parallel commitments to textualism and their parallel understandings of the relative roles of agencies and courts, even this seems like a bridgeable divide between Gorsuch and the justice he might replace. Gorsuch is still a very natural choice for any Republican president to nominate as a replacement for Scalia — someone who would espouse similar principles, stand firm on similar doctrinal commitments, reach similar outcomes, and even fill a similar role as one of the court’s most articulate defenders of conservative judicial theory.
Andrew Hamm contributed extensively to this post, identifying, reviewing and analyzing the cases summarized above.