Supreme Court

Is Neil Gorsuch 'Conservative' in a Good Way?

Let's hope he conserves the Constitution.


The New York Times

Last night my inbox was filled with extravagant praise and harsh denunciations of Neil Gorsuch, President Trump's choice to replace the late Supreme Court Justice Antonin Scalia. With few exceptions, the judgments broke predictably along partisan and ideological lines. Conservatives think Gorsuch is "a brilliant choice," "an unyielding defender of the Constitution," "a distinguished, exceptionally qualified, and widely respected jurist" who "understands what it means to protect the constitutional freedoms afforded to all Americans." Progressives say he is "a disaster for women," "an extremist judge intent on overturning basic, well-established Supreme Court precedents," an "unacceptable nominee" who will "rubber stamp Trump's assaults on Americans' freedoms," an "ideological warrior who puts his own right-wing politics above the Constitution, the law and the rights of everyday people." Libertarians may have a harder time figuring out whether Gorsuch is a good pick for the Supreme Court.

Yesterday Damon Root noted a couple of reasons to be hopeful: Gorsuch is skeptical of bureaucratic power in the application of ambiguous statutes, and he seems inclined to resist erosion of the constitutional ban on unreasonable searches and seizures. The first position is conventionally described as "conservative" (it shows Gorsuch is anti-regulation, according to his progressive detractors), while the latter is viewed as "liberal." But if your main concern is protecting individual rights by enforcing constitutional limits on government power, there is nothing inconsistent about defending the separation of powers in the one case and the Fourth Amendment in the other.


From the perspective of someone who likes conservatives when they conserve the Constitution, this chart, which appears in today's New York Times, is remarkably uninformative. It places Gorsuch on a left-to-right continuum, indicating that he is "more conservative" than Scalia but "less conservative" than Justice Clarence Thomas. Thomas, like Scalia, has been a mixed bag in libertarian terms, but he has steadfastly defended important constitutional principles such as federalism, the doctrine of enumerated powers, freedom of speech, and the right of armed self-defense. So is Gorsuch "more conservative" than Scalia in a good way or a bad way?


The New York Times graph is based on Gorsuch's "Judicial Common Space" score. Under that approach, "If a [federal] judge is appointed from a state where the president and at least one home-state senator are of the same party, the judge is assigned the ideology of the home-state senator." That means Colorado Sen. Cory Gardner's ideology is imputed to Gorsuch—a puzzling result in light of the fact that President Trump is a Republican of recent vintage and uncertain ideology who probably did not solicit Supreme Court advice from Gardner, who in October, after the release of the 2005 video in which Trump bragged about kissing women and grabbing their crotches without their consent, recommended that Trump step aside and let Mike Pence run for president instead. Nor did Gardner, who was elected to the House in 2010 and the Senate in 2014, play a role in Gorsuch's 2006 nomination to the U.S. Court of Appeals for the 10th Circuit.

Even if we accept the logic of this method (which is generally supposed to be a good way of predicting how a nominee will vote on the Supreme Court), there seems to be some dispute about Gardner's ideology. The rating reflected in the New York Times chart is based on the DW-NOMINATE model, which uses roll call votes to place legislators on an ideological map. Gardner's DW-NOMINATE Ideology Score is 0.455, which makes him "more conservative" than 72 percent of the current Congress. Govtrack, which rates ideology based on bill cosponsorship, gives Gardner 0.83 on its scale of conservatism, making him the 31st most conservative member of the Senate. But Conservative Review gives Gardner a dismal "Liberty Score" of 41 percent, based on 10 "liberal votes" and seven "conservative votes," while On the Issues classifies him as a "libertarian-leaning conservative."

Putting that dispute aside, what is Gardner's ideology supposed to tell us about how Gorsuch would vote as a Supreme Court justice? In the article cited by the Times, Washington University political scientist Lee Epstein and her co-authors divided Trump's possible Supreme Court nominees into three categories: "moderately conservative," "conservative," and "extremely conservative." Epstein et al. put Gorsuch in the middle group, indicating that he would vote "to limit gay rights, uphold restrictions on abortion, and invalidate affirmative action programs." And what about all the other issues that might come before the Court? "If we use [Justice Samuel] Alito as our guide," the authors say, "we would expect these 16 candidates [including Gorsuch] to reach conservative decisions in 64% of all cases and in 73% of non-unanimous decisions."

Unless you automatically equate "conservative" with either "good" or "bad," that is not very helpful. It does not tell us, for example, how Gorsuch is apt to vote in cases involving free speech, due process, property rights, search and seizure, federalism, or executive power. A better guide might be Gorsuch's judicial philosophy, which is after all supposed to be what judges consult in applying the law. New York Times legal reporter Adam Liptak says Gorsuch "shares Justice Scalia's legal philosophy," meaning he is "an originalist" who "tries to interpret the Constitution consistently with the understanding of those who drafted and adopted it." That approach, Liptak adds, "leads him to generally but not uniformly conservative results."

Scalia was by no means a consistent originalist, but his inclination toward that approach produced "liberal" results more frequently than you would expect based on the progressive caricature of him as an authoritarian ogre. In fact, he was often more inclined to oppose the government's position than some of his reputedly more liberal colleagues. If Gorsuch's judicial philosophy is in fact similar to Scalia's, libertarians could do a lot worse.

NEXT: Brickbat: All You Can Drink

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  1. This nomination was a huge and humiliating defeat for Trump. Republicans got what they wanted and will now abandon the Trump Train.

    1. He just bought good will with them

      1. Yep, if there were any running odds on impeachment, they just dropped a fair bit.

      1. american socialist|2.1.17 @ 8:30AM|#

        Fuck off slaver

        This hijacking of amsoc’s handle has me woozy…..
        Also, fake amsoc, don’t feed it.

  2. Considering a Hillary choice for the court would have gutted the first and second amendments, this is a Great choice for libertarians…

    1. And Gary Johnson thought that Souter was a good judge and would nominate someone similar to him. All in all, this is far better than what Johnson or Clinton would have nominated.

      In hindsight, it would appear that in order to defend the first and second amendment, along with the right of criminal defendants, you would have had to have voted against the supposedly Libertarian nominee.

      Nice work everyone.

    2. I agree with this on a relative basis. There is no doubt the proggies wanted a European style first amendment where you can be chucked in prison for badspeak and they would have found some form of a “wise latina” to give them that.

      1. At the very least, Hillary would have done everything possible to nullify or overturn Citizens United, starting with her SC nominee.

  3. Anyone not fully pro-choice is extremist in Dems’ eyes.

    Actually, I guess that could apply to any Dem position: If you don’t take the party line, you’re an extremist, because only an extremist racist sexist pig would disagree with Dem policies.

    In any case, this seems like a better pick Libertarian-wise than Garland, although I’m sure there are some warts.

    1. No, anyone not willing to see a baby murdered up until the very moment of delivery is extremist in Dem’s eyes. They are the fucking extremists. They are the ones who tried their damnedest to ignore Kermit Gosnell. But its Gorsuch who is an extremist….

      1. No, anyone who would not force the Little Sisters of the Poor to perform abortions is an extremist in the eyes of the Democrats.

    2. Progressive organizations are criticizing Gorsuch for not wanting to give them whatever they want, with nothing along the lines of “He would read the Constitution incorrectly because….”

      1. Progressivism is a desire to rule without restraint

      2. Gorsuch is skeptical of bureaucratic power in the application of ambiguous statutes, and he seems inclined to resist erosion of the constitutional ban on unreasonable searches and seizures.

        This is an analysis of process, which is how we should look at judges.

        Epstein et al. put Gorsuch in the middle group, indicating that he would vote “to limit gay rights, uphold restrictions on abortion, and invalidate affirmative action programs.”

        This is a judgement of the expected outcomes, where the ends justify any process.

  4. Wtf are the dems doing? Protests, pelosi, identity politics

    I thought there would be a ping pong of parties in power

    But it appears like they are trying to kill their own party or they are just delusional thinking that overwhelming majority loves progressivism but isnt marketed well (tom steyer)

    1. The Dems hitched their entire political party to identity and grievance politics. They really have no overriding philosophy, except to rile people up with “war on women”, “rich must pay”, “black lives matter”, etc, etc.

      For all the hyperventilating causes we’ve had over the last 5 years, what was done in congress by the Dems to help those causes? I can’t think of a single thing. No accomplishment and no plan for accomplishments. There is not a single thing they can point to, that says “this is what we did for you and this is what we will do for you”.

      Without that, the only thing they have is protest. So regardless of how crazy they sound…they have to protest. If they agree with Trump, or reach across the aisle….they’ve utterly abdicated political power.

      Prior to Trump, the Repubs would cave and negotiate to the screaming protests. Trump…not so much. He’s completely cut the Dems off at the knees.

      I fully expect the screaming to get more shrill. We will see division in Congress that we’ve never seen before. Walkouts, sit-ins, screaming on the floor and whatever tactics they can use to disrupt Trump. It is going to be ugly. And at the end of it…if they aren’t effective and Trump actual does things that look positive to the country….the DNC is done for the next 10-20 years. Absolutely done.

      1. Aye.

        Everyone always says the other party is done after they get smoked, but the Dems are simply not learning.

        How long did it take the Tea Party to form, and the Republican base to completely reject Bushism? It wasn’t that long. They didn’t double down on the stupidity of Bush. They changed tactics, got back to their conservative roots, and kicked some ass.

        I don’t see the Democrats getting back to their liberal roots (probably because they never actually had any). They’re doubling down on authoritarianism, throwing a fit because they didn’t get to choose the god-emperor this time.

        1. This could be a great thing for the libertarian party. I think more and more moderate people from both the right and the left will start to realize that their parties have been hijacked by the extremes, and gravitate to libertarianism. I know many conservatives who are at least moderately liberal, and same goes for dems being moderately conservative, especially fiscally and on single issues versus an entire platform. If the libertarians could stop all of the infighting and insults of those new to the party, this could be the opportunity to truly create a real third party that has the chance to truly change government, and not just by one or a few elected politicians.

          My personal belief is that the L party should really reach out to both party members who are becoming disenfranchised, and realizing that even by giving the middle finger to Washington and voting for Trump because they wanted change, that he is not the change they wanted, and will likely do more harm than good, particularly to our economy. There are so many moderates who feel truly lost between all of the utter nonsense of both sides going on right now, and this is the absolute perfect opportunity to attract them to Libertarianism. I think far more people would join the party than they or we realize.

  5. Trump bragged about kissing women and grabbing their crotches without their consent,

    Sigh. Really, Sullum? Still rolling with this?

    1. Those virtues ain’t gona signal themselves.

    2. Yeah, it sounded probably consensual to me. Replace “grab em by the pussy” with a different sexual act and tell me how it reads:

      “And when you’re a star, they let you do it. You can do anything. Fuck ’em in the ass.”

      Is he saying he anally raped those women, or that being a star gets Wilt Chamberlain ten thousand willing partners?

      1. You gotta load em up on Quaaludes first, and preferably when they are in their early teens.

        Then whatever recordings you make get you an Oscar.

      2. You got it. After admitting that he tried to get in one specific woman’s pants, Trump switched from first to third person. “When you’re a star (like me), they let you (people like me) do it.”

        And, BTW, “they let you do it” signifies consent.

  6. My work here is done. 🙂

    1. Get back to work, slacker.

  7. I realized over the past few days that Reason should really only be read during a Democratic administration. The hysterics of recent days (comparing the refugee ban to Japanese internment camps and calling it a ‘Muslim ban’) reminds me of the same insanity that occurred during the Bush administration. In contrast, they were far more measured in their criticism during the Obama administration.

    I don’t know if this is due to their desire to prove to everyone that libertarians are not just ‘conservatives who smoke pot’ or if it is just all ‘virtue signaling’.

    Reason writers would dismiss this criticism as a ‘partisan’ attacking them, but I didn’t support either of the past three administrations. I just think that in order to see measured criticism from Reason there needs to be a Democrat in the White House, otherwise its hysterics all the time.

    The fact that Reason can’t even bring itself to recognize what a good pick Gorsuch is (Nick was falling over himself to find something, anything to criticize Gorsuch for on twitter last night), kind of proves the point.

    So, here’s hoping for a Democratic win in four years, so that sanity is restored to the writers at Reason

    1. Haha i hope not. We will get a worse democrat though maybe the progs will be gone by then.

      You hit the nail on the head. I am only here to read the comments. The writing on this site resembles that of a tabloid for the most part except for ENB and some others

    2. So you would rather have Democrats in power absolutely destroying our Constitution and Country so that you can read articles that agree with all of your views? Okay….

    3. Well-said, JS.

      Also, their seeming indifference to the plight of Sloopy’s mom. I mean that’s just as clear-cut a case of rights violations as anything which Balko or Skenazy has written about. And while I can see someone making a conflict-of-intererests argument (assuming Sloopy is a contributor), the magazine has a well-documented record of reporting on that sort of thing.

      1. You think it’s now them vs. the commentariat?

    4. Once you realize the ‘libertarians’ at Reason are progressives who like to call government granted permission for preferred outcomes liberty then it will make sense.

      1. WAT

      2. Are you saying that from an anarchist view or a conservative view? I’m an anarchist, and to some extent, you’ll have to yield to the “big tent” where libertarianism means “less intrusive government,” AKA mini-statist. Of course, it’s not perfect, and it’s prone to yield perverse consequences, but it’s generally better than left- or right-wing authoritarianism.

        1. Sure. But I prefer “least intrusive” rather than “less intrusive. People are going to form governments either way, even if you call it something different in anarchist utopia. Bless your heart, though.

          1. Obviously, as a self-described anarchist, I prefer not intrusive at all. Sometimes it’s best to accept that some people need training wheels, though. FWIW, claims that people want “utopia” (unless they’re socialist/communist) are unwarranted and hyperbolic. There can be no need for a monopoly on violence in civilization.

    5. Aye, they don’t think they’re cool unless they’re disagreeing with those in power. Problem is, as you said, they disagree far less hysterically and vehemently with the Democrats, even though they are the anti-liberty, statist, authoritarian party. The Republicans mostly just want to conserve the classically liberal principles of our Founding.

      1. What’s disturbing about this attitude is the “in power” part. That’s what principled libertarians agree with. Show me someone “in power” and I’ll show you someone abusing it. That’s why there’s always plenty of room for improvement. I know people to the right of true liberty cannot see this, but eventually, most of them do come around.

  8. I giggled reading how some people are trying to use some warped, rusty old political scale to grade judicial orientation. That’s like trying to figure how close to true north an object is pointing based on its surface temperature.

    But I guess it’s politics all the way down for some people.

    1. My concern over Gorsuch is that we never really know what a SCOTUS nominee will do as a justice until after he/she becomes a justice.

      Sure we can presume certain tendencies. But when viewed in toto those tendencies have historically been overwhelmingly statist.

  9. Progressives say he is “a disaster for women,” “an extremist judge intent on overturning basic, well-established Supreme Court precedents,” an “unacceptable nominee” who will “rubber stamp Trump’s assaults on Americans’ freedoms,” an “ideological warrior who puts his own right-wing politics above the Constitution, the law and the rights of everyday people.”

    Just goes to show progressives are as predictable as they are stupid. It’s one thing to filibuster Gorsuch because Senate Republicans “stole” the seat from Obama and Merrick Garland. It’s petulant and silly but at least they can argue they’re retaliating in kind for GOP obstruction.

    Arguing (counter-factually) that Gorsuch is a deranged extremist completely undermines the former position. He’s a Scalia-type judge replacing Antonin Scalia, it’s a restoration of the status quo. No one should really oppose that.

    In addition, his history suggests he will vote against executive overreach. You know, the kind of thing progressives should ostensibly want given the nonstop pants-pissing over Trump they’ve exuded in the last two weeks.

    1. it’s a restoration of the status quo. No one should really oppose that.

      Remember “Lean Forward”?

      1. Seems like a different way to say “bend over (and take it!)”

    2. The truth reality based critical thinkers which are progs can only come up with boilerplate nonsense? Color me shocked!!

    3. But the seat rightly belonged to the progressives! It was stolen! Gorsuch is an illegitimate pick!

  10. Once again, the progs are claiming that the sky is falling. (OK, well, in their world they sky IS falling. Continuously, since November.)

    Had Her Royal Cancleness won the election I was expecting we would be muttering “Supreme Court Justice Barrack Obama” about now.

    I actually know some people who were dissuaded from voting for her by hearing those five words in that order.

  11. Pretty much all real libertarians are in agreement than a Don Willett or Janice Rogers Brown would have been a much better choice. For a brief moment there I got my hopes up that Willett might have a shot, but I probably should have knowm better.

    Barring that, someone along the lines of a Clarence Thomas or a Scalia is definitely the next best thing. Needless to say,, the liars and fakers (of which there are so damn many around here) were hoping that Hildog would put on another Ginsburg, Kagan, or Sotomayor, though of course they’ll never just come out and admit it.

    1. Either Willett or Brown sound good, but don’t feel down.

      Ginsburg 83
      Kennedy 80
      Breyer 78

      How long do you think it will be until Trump starts replacing liberal justices?

  12. A lot of basic well established precedents are blights on liberty and the republican checks and balances that are supposed to keep the government in check. Someone who yells about overturning precedent makibg Gorsuch a monster is putting me behind him.

  13. That’s some boring alt-text.

  14. We’ll learn more, of course, but the couple I’ve heard about I like:

    (1) He is opposed to Chevron deference to administrative agencies.

    (2) He is an originalist/strict constructionist on search and seizure – I read about a dissent he filed in a case about whether cops could ignore no trespassing signs. He said they couldn’t, and if that was an inconvenience for the cops, too bad.

    1. And that is balanced by hostility to self-ownership, as reported by Damon Root:

      Gorsuch also rejected the “libertarian case for assisted suicide” because, he argued, “faithful adherence to libertarian theory” would also justify the legalization of “mass suicide pacts…duels, and the sale of one’s life (not to mention the use of now illegal drugs, prostitution, or the sale of one’s organs).”

      1. But practically no “serious” legal scholars (maybe Randy Barnett) would disagree w that. So it’s like saying, this lot is no good because nobody’s struck gold on it.

  15. On the Constitution, conservatives differ form libertarians in not too many ways. Conservatives believe that unborn children have civil rights, while most (fortunately, not all) consider them to be just tissue until magic happens and they are full fledged people. Conservatives believe that the Constitution was intended, and should be interpreted as if we live in the real world, not one peopled by the perfect citizens of Ayn Rand’s dreams.

    1. You seem to keep the company of odd conservatives. The ones I know consider the unborn human at conception, and the Constitution a rigid document. Libertarians, on the other hand, seem to believe that the rights of the unborn are based on whether you consider a collection of human DNA to be, itself human, and the Constitution to be an ill-fated attempt to define and control a misguided institution known as The State.

  16. Let me save you the suspense on Gardner (sorry about Gorsuch.) I’m in Colorado, and Gardner is no libertarian. He does, however, have the mannerism of a “dynamic personality,” making him unusually salable to the more left-leaning Republicans and centrist Democrats and non-libertarian independents.

    In other terms, the Colorado contingent which has almost famously gone to bat for federal recognition of recreational cannabis hasn’t included his name at all, to my recollection, whereas the names of several other Colorado Republicans and conservatives have come up.

    More to the point, I sure as hell didn’t vote for him!

  17. Oh, I did read an article that ran down his cannabis views, which seem to be a matter of not being too friendly with regard to what people put into their own bodies, unless it comes down to so-called “states’ rights,” which he’s for. Thus, I guess he’d be friendly to pot legalization and taxation by states, while not friendly toward “lawbreakers” in states where it and other substances are illegal.

    1. Much better than the status quo, no?

      At least with states rights we can prove that the sky isn’t going to fall down by trying different things, and people are completely free to move between states if they can’t handle someone rolling a doobie.

      1. States don’t have rights. PEOPLE have rights. Constitutionally speaking, states have the powers that the people grant them, minus the reserved powers they granted the federal government.

      2. I’ll admit it was unkind of me not to acquiesce on the second part of that. I agree that it is valuable to show that while drug use may cause some harm, it’s less harm than caused by the War on Drugs, and in the case of cannabis, FAR less harm. Moreover, the costs of said harm are far more often born by the user, and education is the answer for that, whereas the War on Drugs harms us all.

  18. I think it is amazing that Judge Andrew Napolitano, who is not only a libertarian but actually an AnCap, said that Gorsuch was the BEST PERSON IN THE USA for this position, yet Reason is lukewarm at best!

    1. He’s on Fox news. He’s just telling the audience what it wants to hear.

  19. He actually said “the most worthy jurist in the country to fill the shoes of Antonin Scalia”:…

  20. He actually said “the most worthy jurist in the country to fill the shoes of Antonin Scalia”:…

  21. Thomas voted to allow censor boards for video games so I dont see how he’s good on free speech.

    Also I found more things to be concerned about Gorsuch in the Damon Root piece than to be hopeful, like him criticizing libertarianism saying it could lead to drugs, prostitution…. being legal. He also doesnt seem to believe in unenumerated rights at all. And he has praised majoritarian Robert Bork. His position on assisted suicide is a concern as well. He’s almost definitely anti abortion. He seems like a social conservative. I dont think he will be very good.

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