Trump's SCOTUS Front-Runner a Fitting Successor for Scalia

COMMENTARY Courts

Trump's SCOTUS Front-Runner a Fitting Successor for Scalia

Jan 27th, 2017 4 min read

Commentary By

Hans A. von Spakovsky @HvonSpakovsky

Election Law Reform Initiative and Senior Legal Fellow

Elizabeth Slattery @EHSlattery

Legal Fellow and Appellate Advocacy Program Manager, Meese Center for Legal and Judicial Studies

This week, Neil Gorsuch emerged as a front-runner to fill the vacancy left by the death of Supreme Court Justice Antonin Scalia. President Trump has indicated that he intends to nominate someone “very much in the mold of” Justice Scalia, and Neil Gorsuch is about as close as it gets.

A judge on the Denver-based Tenth Circuit, Gorsuch is known for his colorful writing style and textualist opinions. His background features sterling academic credentials (with degrees from Columbia, Harvard, and Oxford), clerkships with D.C. Circuit Judge David Sentelle and Supreme Court Justices Byron White and Anthony Kennedy, and service in the U.S. Department of Justice.

Though born in Colorado, Gorsuch spent many years in Washington when his mother, Anne Gorsuch Burford, served as EPA administrator under President Reagan. Thus, he’s more of an “inside the Beltway” candidate than many others on Trump’s list of 21 potential nominees.

 

Like Scalia, Gorsuch is an ardent supporter of religious liberty, as demonstrated by cases such as the ObamaCare contraception mandate challenges brought by Hobby Lobby and the Little Sisters of the Poor and others involving religious monuments on public lands and prisoners’ free exercise rights.

They appear to have similar views about physician-assisted suicide, and their jurisprudence reflects a common theme of reading criminal statutes narrowly to favor defendants and not allowing the government to ignore mens rea requirements.

Just as Scalia was a champion of originalism, Gorsuch has demonstrated a commitment to following the original public meaning of the Constitution in countless opinions and speeches. As a former clerk recounted:

“Whenever a constitutional issue came up in our cases, he sent one of his clerks on a deep dive through the historical sources. ‘We need to get this right,’ was the memo — and right meant ‘as originally understood.’”

In his dissenting opinion in United States v. Nichols, for example, Gorsuch highlighted a constitutional issue lurking in a case dealing with the Sex Offender Registration and Notification Act — whether Congress may delegate to prosecutors the responsibility of defining the crimes they enforce.

Going back to first principles, Gorsuch wrote:

“There’s ample evidence … that 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.”

In Cordova v. City of Albuquerque, a case seeking to make a constitutional claim out of a malicious prosecution (a common law tort), Gorsuch wrote that the Constitution:

“Isn’t some inkblot on which litigants may project their hopes and dreams … but a carefully drafted text judges are charged with applying according to its original public meaning.

"If a party wishes to claim a constitutional right, it is incumbent on him to tell us where it lies, not to assume or stipulate with the other side that it must be in there someplace.”

In a speech delivered weeks after Scalia’s passing, Gorsuch declared:

“(I)t seems to me an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function.

"That, yes, judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views, always with an eye on the outcome, and engaged perhaps in some Benthamite calculation of pleasures and pains along the way.”

One notable area of difference from Scalia is their approach to administrative law. Gorsuch has suggested the Supreme Court should reconsider its Chevron doctrine, which affords federal agencies deference in interpreting statutes they are charged with administering.

Though Scalia was not enamored with the Chevron decision, he did not seem interested in overruling it. In Gutierrez-Brizuela v. Lynch, Gorsuch posited:

“(W)hat would happen in a world without Chevron? ... Surely Congress could and would continue to pass statutes to enforce. And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes.

"The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is … We managed to live with the administrative state before Chevron. We could do it again.”

As President Trump mulls over his selection to replace Justice Scalia, he has many fine options. Justice Scalia left big shoes to fill, but if the pick is Neil Gorsuch, he seems up to the task.

This piece originally appeared in The Hill

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