Judicial Courage: Justice Gorsuch Ventures Out on His Own While Preserving Scalia’s Principles

Report Courts

Judicial Courage: Justice Gorsuch Ventures Out on His Own While Preserving Scalia’s Principles

November 15, 2019 34 min read Download Report
Legal Fellow, Meese Center
GianCarlo is a Legal Fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation.


Over these last two terms, Justice Neil Gorsuch has proved himself a fitting replacement for the late Justice Antonin Scalia. He shares Scalia’s concern that unrestrained judicial power is undemocratic, and so he shares Scalia’s commitment to interpreting the Constitution according to its text and original meaning—rather than his own personal preferences. The two have much in common: a devotion to the Constitution’s text, a belief that legal principles trump facts, and a commitment to protect the rights of even the least sympathetic criminal defendants. But Gorsuch’s uniqueness, too—his confident independence and liberty-centric focus—proves that he is the right justice for that seat.

Key Takeaways

Justice Neil Gorsuch is a principled jurist, keenly aware of his responsibility to protect our democratic tradition.

For Gorsuch, like Justice Antonin Scalia before him, constitutional principles trump ugly facts.

He is deeply committed to an originalist view of the Constitution and to upholding that document’s protections for individual liberty.

Just over two years ago, Neil Gorsuch took the oath of office as an associate justice on the Supreme Court. In so doing, he filled the seat left empty by the late Justice Antonin Scalia. In his short time on the Court, Gorsuch has already shown himself a fitting replacement for Scalia in more ways than one.

Like Scalia, Gorsuch is a principled jurist keenly aware of his responsibility to protect our democratic tradition. He shares Scalia’s concern that unrestrained judicial power is undemocratic, and so he shares Scalia’s commitment to interpreting the Constitution according to its text and original meaning rather than his own personal preferences.REF In his opening statement to the Senate Judiciary Committee, Gorsuch echoed a famous quote by Scalia when he said, “A judge who likes every outcome he reaches is probably a pretty bad judge, stretching for policy results he prefers rather than those the law compels.”REF

Gorsuch shares another characteristic with Scalia: a commitment to protect the rights of the criminally accused. Scalia earned a reputation as the “best friend” that criminal defendants had on the Court.REF His Sixth Amendment opinions,REF in particular, were “pro-defendant.” His majority opinion in Crawford v. WashingtonREF is probably his most famous. There, Scalia relied on the history of the Confrontation ClauseREF to conclude that any testimonial statements made outside of court by a witness to an alleged crime cannot be used in court against a defendant unless the witness is unavailable and the defendant had a prior chance to cross-examine him.REF

Less famous, but just as monumental, was Scalia’s majority opinion in Blakely v. Wasington.REF There, the Court held that the Sixth Amendment right to a jury trial forbids judges from relying on facts not proved beyond a reasonable doubt to enhance a criminal sentence.REF At times, Scalia’s opinions favoring criminal defendants surprised and frustrated “law-and-order” conservatives and frequently saw Scalia voting with the Democrat-appointed justices in criminal cases.REF The facts of those cases were never pleasant—and the defendants never sympathetic.

In Sykes v. United States,REF for example, the defendant had a history of violent armed robberies. His third robbery at gunpoint landed him before the Supreme Court, which considered whether, for the purpose of enhancing his sentence as a violent career criminal, a prior crime of fleeing by car from law enforcement was “a crime of violence” within the meaning of a vague statute. The court held that fleeing by car from arrest was violent and upheld his extended sentence.REF No doubt law-and-order types supported the decision because it meant a dangerous man would spend many more years in prison than he otherwise would have. But Scalia dissented from the opinion, arguing that the law was so vague it was unconstitutional.REF Scalia explained that something bigger than keeping a violent man off the streets was at stake. A vague criminal law, he said, “does not give a person of ordinary intelligence fair notice of its reach…and that permits, indeed invites, arbitrary enforcement.”REF

Sykes revealed two things about the late justice: He believed that legal principles transcend the facts of a particular case, and that laws permitting the government to use its most fearsome power—the power to use force against and incarcerate its own citizens—must be precisely and plainly written. Scalia’s commitment to limit the government’s use of its criminal power calls to mind the words of James Madison: “If men were angels, no government would be necessary,” but “[i]n framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable to the government to control the governed; and in the next place oblige it to control itself.”REF

Since taking his place on the Supreme Court, Gorsuch’s opinions show that he has taken up Scalia’s banner to protect the rights of the criminally accused. But two things are worth remembering. First, this is not a new development for Gorsuch; it comes as no surprise to those who followed his record on the Tenth Circuit Court of Appeals.REF And second, Gorsuch does not write in favor of criminal defendants because he affords them special treatment, but because, in his view, a principled approach to the Constitution compels that result.REF It is that dogged adherence to the text and history of the Constitution that Gorsuch shares with his predecessor and which ultimately makes him a fitting successor.

“Vague laws invite arbitrary power.”REF

When it comes to criminal statutes, Gorsuch, like Scalia before him, demands clarity. As Scalia did in Sykes (and several other cases),REF Gorsuch has now twice voted with the Democrat-appointed justices to strike down as vague two statutes that purported to define “crimes of violence.”

The first case, Sessions v. Dimaya,REF involved an immigration statute that virtually guaranteed that any alien convicted of a “crime of violence” would be deported.REF The statute included in its definition of crime of violence any offense “that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”REF Writing for the majority, Justice Elena Kagan explained that in deciding whether a crime falls within that definition, the Court takes a “categorical approach” and looks at whether the statutory elements of the crime “require (or entail) the creation of such a risk in each case that the crime covers.”REF The Court does not look at the particular facts of the underlying conviction.REF

The Court struck down the law based on the void-for-vagueness doctrine.REF That doctrine “guarantees that ordinary people have ‘fair notice’ of the conduct a statute proscribes.”REF It requires that Congress clearly explain what conduct is prohibited, and forbids Congress from forcing the courts to fill in the blanks.REF

The Court directly applied (and quoted extensively from) Scalia’s reasoning in Johnson v. United StatesREF to find the law unconstitutionally vague. Like the law in Johnson, the law in Dimaya had two fatal flaws. First, it created “‘grave uncertainty about how to estimate the risk posed by crime’ because ‘it tied the judicial assessment of risk’ to a hypothesis about the crimes ‘ordinary case.’”REF And second, the law did not explain what level of risk was “substantial.”REF As such, it violated the void-for-vagueness doctrine and had to be struck down.

Gorsuch concurred in the opinion but wrote separately to examine whether the void-for-vagueness doctrine “can fairly claim roots in the Constitution as originally understood.”REF He began his analysis by looking at the Fifth and Fourteenth Amendments’ guarantee against the government taking “life, liberty, or property, without due process of lawREF from which the void-for-vagueness doctrine is derived.” Reviewing historical sources, he concluded that “[p]erhaps the most basic of due process’s customary protections is the demand of fair notice.”REF If the law fails to supply fair notice, “so much else of the Constitution risks becoming only a ‘parchment barrier’ against arbitrary power.”REF

But due process, he concluded, is not the only constitutional requirement supporting the void-for-vagueness doctrine. As Kagan acknowledged in the majority opinion,REF Gorsuch reasoned that the separation of powers was equally responsible for the doctrine.REF Legislators, he explained, “may not ‘abdicate their responsibilities for setting the standards of the criminal law.’”REF After all, “[u]nder the Constitution, the adoption of new laws restricting liberty is supposed to be a hard business, the product of an open and public debate among a large and diverse number of elected representatives.”REF

As Sykes revealed some of Scalia’s priorities, Dimaya reveals one of Gorsuch’s: a desire to protect representative democracy and an awareness that judicial power can, if carelessly wielded, undermine self-rule. Gorsuch ends his opinion by attempting to limit its scope. The void-for-vagueness doctrine, he says, is only procedural; it imposes no substantive requirements on the law.REF It requires legislatures “to act with enough clarity that reasonable people can know what is required of them,” but it “does not forbid the legislature from acting toward any end it wishes.”REF

Gorsuch took another opportunity to hold Congress to account for a vague law just one year after Dimaya. In United States v. Davis,REF Gorsuch wrote for a majority (again, composed of himself and the Democrat-appointed justices) to strike down another law that used an almost identical definition of “crime of violence.”

The case presented a slightly different question, though. The government, knowing that Johnson and Dimaya spelled doom for its defense of the law, changed tactics. Instead of arguing that the law was not vague, the government argued that the law required the Court to look at the actual facts of the underlying crime rather than taking a categorical approach.REF

Showing, once again, that he does not want the Court to interfere with the democratic process, Gorsuch refused to read the law to require a case-specific approach. The law’s text, context, and history plainly revealed that Congress intended the courts to take a categorical approach.REF As such, the court could not simply rewrite it. There are many ways Congress could fix the problem, Gorsuch explained, like writing statutes that plainly mandate a case-specific approach, or retaining the categorical approach while avoiding vagueness.REF But “no matter how tempting, this Court is not in the business of writing new statutes to right every social wrong it may perceive.”REF

“[T]oday’s Court invokes federalism not to protect individual liberty but to threaten it.”

In Gamble v. United States,REF Gorsuch struck out alone to argue that a historical understanding of the Constitution’s prohibition on double jeopardyREF forbids the federal government from convicting someone of a federal crime after a state has convicted him of a state crime based on the same underlying conduct.REF

At issue in Gamble was the long-standing “dual sovereignty” doctrine, which provides that a crime under a state’s law is not the “same offence” as a crime under federal law even if they are identical or arise out the same conduct.REF The defendant there pleaded guilty to an Alabama state offense of being an ex-felon in possession of a firearm.REF The federal government then indicted him for the same conduct under a materially identical federal law.REF Gamble moved to dismiss the federal indictment, claiming that the indictment was for the “same offence” and thus violated double jeopardy.REF A majority of the Supreme Court, in an opinion by Justice Samuel Alito, rejected his argument, holding that an “offence” is defined by law, each law is defined by a sovereign, and the state and federal governments are separate sovereigns.REF

Gorsuch dissented. After conducting an exhaustive review of historical sources, he concluded that “offense” meant “transgression.”REF And “transgression” referred to the underlying conduct, not a violation of a specific law defined by the sovereign.REF Thus, where there was one underlying criminal act, the defendant could be prosecuted only once.REF After all, he explained, “if double jeopardy prevents one government from prosecuting a defendant multiple times for the same offense under the banner of separate statutory labels, on what account can it make a difference when many governments collectively seek to do the same thing?”REF Justice Clarence Thomas, in his separate concurring opinion, called Gorsuch’s historical analysis “admirable,” but he could not agree with Gorsuch because he was not satisfied that Gorsuch’s historical sources were as conclusive as Gorsuch claimed.REF

If Gorsuch is correct that the historical record is unequivocal, then Gamble shows us that he is deeply committed to an originalist view of the Constitution, again, even if it means a criminal defendant will benefit.REF But if Thomas is correct that the historical record was not so clear, we learn something even more interesting about Gorsuch. When the historical record does not compel a particular result, his instinct is to decide the case in a way that favors individual liberty.

The last few paragraphs of Gorsuch’s opinion in Gamble support this speculation. There, he argues, essentially as a matter of policy, that the separate sovereigns doctrine endangers individual liberty in the modern era. He explains that when the doctrine first emerged, the federal criminal law was “new, thin, modest, and restrained.”REF But today, federal criminal law duplicates almost every state crime and contains more than 4,500 criminal statutes and “hundreds of thousands” of federal regulations.REF If, long ago, the Court could trust “the benignant spirit” of prosecutors, “it’s unclear how [it] still might.”REF He concluded:

Enforcing the Constitution always bears its costs. But when the people adopted the Constitution and its Bill of Rights, they thought the liberties promised there worth the costs…. When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is “the poor and the weak,” and the unpopular and controversial, who suffer first—and there is nothing to stop them from being the last.REF

Ultimately, regardless whether Gorsuch or Thomas is right about the clarity of the historical record, Gorsuch’s opinion reveals that he sees the Constitution as protecting our tradition of individual liberty, and he is unwilling to trust the government’s benevolence when deciding whether it should have a power that allows it to intrude on that liberty.

“The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty.”

In Gundy v. United States,REF Gorsuch showed that his liberty-focused approach does not waiver or weaken—even when it is applied to some of the least sympathetic members of society. There, in a case very similar to one Gorsuch confronted while still a judge on a Tenth Circuit,REF the Court considered whether Congress had unconstitutionally delegated its legislative authority to the attorney general to decide whether and how to interpret the Sex Offender Registration and Notification Act of 2006 (SORNA).REF SORNA created a uniform sex-offender registry and required all convicted sex offenders to register in every jurisdiction where they live, work, or go to school.REF Failure to register under SORNA is a separate criminal offense.REF

SORNA did not, however, say whether sex offenders who were convicted before its enactment were covered by it.REF Instead, it delegated to the attorney general the authority to make that determination.REF The petitioner, a pre-SORNA sex offender who was convicted for not registering under that law, argued that law was an unconstitutional delegation of Congress’ law-making authority.REF

A plurality of the Court consisting of Justices Kagan, Ruth Bader Ginsburg, Stephen Breyer, and Sonia SotomayorREF upheld SORNA’s delegation by essentially writing into it a requirement that the attorney general must apply the law to pre-SORNA offenders “as soon as feasible.”REF But no such requirement appeared in the text of the statute.REF They were joined by Justice Alito, who concurred in the judgment but indicated a willingness to reconsider the Court’s approach to the so-called non-delegation doctrine in a future case.

Justice Gorsuch, joined by Chief Justice John Roberts and Justice Thomas, dissented. The first paragraph of his dissent reveals how a case that, to most, appears to involve a dry matter of statutory interpretation governing sex offender registration, to Justice Gorsuch, involves an dire threat to personal liberty for all Americans:

The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?REF

Gorsuch describes SORNA’s registration requirement as a “law restricting liberty,” and the sex offenders it governs as a “group of persons.” To him, the fact that SORNA’s registration requirement is good policy governing bad people is no excuse for its unconstitutional delegation.

He explains that “[i]t would be easy enough to let this case go. After all, sex offenders are one of the most disfavored groups in society.”REF But more is at stake than the liberty of sex offenders because “the rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else.”REF To hold otherwise, he concludes, “would be to mark the end of any meaningful enforcement of our separation of powers and invite the tyranny of the majority that follows when lawmaking and law enforcement responsibilities are united in the same hands.”REF

“Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.”

Gorsuch’s plurality opinion, joined by Justices Kagan, Ginsburg, and Sotomayor, in United States v. Haymond,REF takes his defense of personal liberty even further, showing that Gorsuch reads the Constitution’s express protections of liberty in absolute terms.

In that case, the defendant, Haymond, was convicted by a jury of possessing child pornography and sentenced to 38 months in prison, followed by 10 years of supervised release.REF While on supervised release, the government searched his computer and found images that appeared to be child pornography.REF Accordingly, the government moved to revoke Haymond’s supervised release and secure an additional prison sentence.REF After a hearing, the judge found that Haymond knowingly possessed some of those images and, pursuant to a federal statute, imposed a new mandatory five-year minimum sentence.REF On appeal, the Tenth Circuit found the federal statute unconstitutional because the new five-year sentence, which was higher than the sentence for the original conviction, was based on facts found by a judge (not a jury) by a preponderance of the evidence.REF

Writing for a plurality,REF Gorsuch also held the statute unconstitutional. He adhered strictly to the texts of the Sixth AmendmentREF (right to jury trial) and Fifth AmendmentREF (right to due process), concluding that those two amendments “ensure that the government must prove to a jury every criminal charge beyond a reasonable doubt.”REF In other words, “a jury must find all of the facts necessary to authorize a judicial punishment.”REF To allow a judge to impose a new sentence based on newly found facts utilizing a preponderance-of-the-evidence standard “exemplifies the ‘Framers’ fears that the jury right could be lost not only by gross denial, but by erosion.’”REF

Alito dissented, joined by the other Republican-appointed justices, arguing that Gorsuch’s opinion “sports rhetoric with potentially revolutionary implications.”REF He argued that Gorsuch “strongly suggest[s] that the Sixth Amendment right to a jury trial applies to any supervised-release revocation proceeding.”REF If so, “the whole concept of supervised release will come crashing down.”REF Alito accused Gorsuch of writing a “carefully crafted opinion” with a “thinly veiled” strategy that lacks any “clear ground for limiting the rationale of the opinion so that it does not lead to that result.”REF

No doubt, “law and order” types will share Alito’s concerns. Especially given that people who view child pornography, like Haymond, are far from sympathetic and often seen as incurable.REF But as with the cases discussed above, Haymond shows that for Gorsuch, like Scalia before him, Constitutional principles trump ugly facts.

“There is another way.”

So far, we have seen that Gorsuch shares principles and approaches with his predecessor, Justice Scalia. But Gorsuch is very much his own justice. Perhaps no opinion better illustrates this than his dissent in Carpenter v. United States.REF There, he struck out alone to argue in favor of fundamentally restructuring the court’s Fourth Amendment jurisprudence to bring it back into line with the Amendment’s text.

In Carpenter, the Court considered whether the Fourth Amendment’s search and seizure clauseREF requires the government to get a search warrant to access cell phone records that track the user’s past movements.REF For the longest time,REF the Supreme Court has held that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” where what is reasonable is determined by society.REF Advances in technology—like cellphone positioning technology—have made this test difficult to apply and increasingly ungrounded in the constitutional text and history.REF To assist itself with these increasingly complicated cases, the Court has created certain bright-line rules in specific situations. One of those rules, called the “third-party doctrine,” was implicated in Carpenter.REF

The third-party doctrine holds that a person “has no legitimate expectation of privacy in information he voluntarily turns over to third parties…even if the information is revealed on the assumption that it will be used only for a limited purpose.”REF As a result, the government typically does not need a warrant to collect information held by third parties.REF

The third-party doctrine seemed to compel a government victory in Carpenter because the cellphone tracking information was kept by a third party, the defendant’s wireless carrier.REF But, as so often happens in Fourth Amendment cases, the Court realized that its old bright-line rule led to an uncomfortable result when applied to new technology.REF So the majority chose to blur the bright-line, holding that because of cellphone tracking technology’s “depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.”REF

Gorsuch dissented.REF To him, the third-party doctrine is, and always was, a bad approach. “What’s left of the Fourth Amendment,” he wondered, when “[t]oday we use the Internet to do most everything”? The assumption that there is no reasonable expectation of privacy in materials handed over to third parties is unbelievable in the information age where “even our most private documents—those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers.”REF

But, for Gorsuch, abandoning the third-party doctrine for the old “reasonable expectation of privacy” test was not a good approach, either.REF That test (which comes from Justice John Marshall Harlan’s concurrence in KatzREF), Gorsuch explained, is fundamentally divorced from the constitutional text. A person’s right to Fourth Amendment protection does not “depend on whether a judge happens to agree that your subjective expectation of privacy is a ‘reasonable’ one.”REF By its plain terms, the amendment “grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized. Period.”REF The Katz approach, he continued, has given the lower courts nothing but “amorphous balancing tests,” “incommensurable principles,” and “a few illustrative examples that seem little more than the product of judicial intuition.”REF

So Gorsuch offered another way—what he called the “traditional approach.”REF The traditional approach “asked if a house, paper, or effect was yours under the law. No more was needed to trigger the Fourth Amendment.”REF This approach, he explained, has several advantages over Katz.REF For one, it is based on positive legal rights instead of “the biases or personal policy preference” of judges.REF For another, it “‘carves out significant room for legislative participation in the Fourth Amendment context,’ too, by asking judges to consult what the people’s representatives have to say about their rights.”REF And finally, it avoids the third-party doctrine’s most absurd implications in the digital age.REF

So how would this positive-law-based approach work? When a search targets a house, paper, or effect that is plainly “yours,” the answer is easy; the Fourth Amendment applies. But, Gorsuch asked, “what kind of legal interest is sufficient to make something yours…[a]nd what source of law determines that?”REF Gorsuch admitted that more work needed to be done to satisfactorily answer these questions, but he provided five signposts, derived principally from historical examples, to guide the construction of this traditional approach.

  • “[T]he fact that a third party has access to or possession of your papers and effects does not necessarily eliminate your interest in them.”REF
  • “[C]omplete ownership or exclusive control” is unlikely to be a necessary prerequisite to assert a Fourth Amendment right.REF Consider, for example, people who share a rented house; they lack complete control or ownership, but have historically had Fourth Amendment rights with respect to their homes.REF
  • Positive law can “help provide detailed guidance on evolving technologies without resort to judicial intuition.”REF Both state and federal law often create rights in tangible and intangible things that “may provide a sounder basis for judicial decisionmaking than judicial guesswork.”REF
  • The Constitution provides a “floor” against legislative attempts to circumvent a person’s Fourth Amendment rights.REF For instance, legislatures “cannot pass laws declaring your house or papers to be your property except to the extent the police wish to search them without cause.”REF
  • “[T]his constitutional floor may, in some instances, bar efforts to circumvent the Fourth Amendment’s protection through the use of subpoenas.”REF After all, Gorsuch argued, “[n]o one thinks the government can evade Jackson’sREF prohibition on opening sealed letters without a warrant simply by issuing a subpoena to a postmaster for ‘all letters sent by John Smith’ or, worse, ‘all letters sent by John Smith concerning a particular transaction.’”REF

All of this to say that a traditional, positive-law-based approach, properly formulated, would be superior to the Court’s current whack-a-mole approach, which “fail[s] to vindicate the full protections of the Fourth Amendment.”REF

Gorsuch acknowledged that the record in Carpenter did not include any evidence that would allow him to apply a traditional approach in the case, but he speculated that “cell-site data could qualify as [the defendant’s] papers or effects under existing law.”REF After all, federal law gives cellular customers “substantial legal interests” in that information.REF

No other justice joined Gorsuch’s opinion. It remains to be seen if, like Scalia eventually did in Johnson,REF Gorsuch brings other justices around. But Carpenter shows that Gorsuch is perfectly comfortable striking out alone, even to reinvent an enormous field of jurisprudence, if he thinks the court has diverted from the constitutional text.


Over these last two terms, Justice Neil Gorsuch has proved himself a fitting replacement for the late Justice Antonin Scalia. The two have much in common: a devotion to the Constitution’s text, a belief that legal principles trump facts, and a commitment to protect the rights of even the least sympathetic criminal defendants. But Gorsuch’s uniqueness, too—his confident independence and liberty-centric focus—proves that he is the right justice for that seat.

In his testimony before the Senate Judiciary Committee, Gorsuch thanked his mentor, Justice Byron White, because he “modeled for me judicial courage.”REF Gorsuch, it seems, has taken White’s lesson to heart.

GianCarlo Canaparo is Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation.


GianCarlo Canaparo

Legal Fellow, Meese Center