Neil Gorsuch

Gorsuch's Track Record Suggests He Won't Be Trump's Rubber Stamp

The SCOTUS nominee is not afraid to challenge the government when it exceeds the law.

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Demand Progress says Neil Gorsuch, President Trump's choice to replace the late Supreme Court Justice Antonin Scalia, is the sort of judge who "will rubber stamp Trump's assaults on Americans' freedoms." People for the American Way likewise warns that Gorsuch will be "a rubber stamp for the kind of anti-constitutional actions that we have seen over just the last week." A review of opinions Gorsuch has written since he joined the U.S. Court of Appeals for the 10th Circuit in 2006 provides ample reason to question such claims.

Since the "anti-constitutional actions" to which PFAW refers presumably include Trump's executive order restricting admission to the United States, the fact that Gorsuch has repeatedly sided with immigrants resisting deportation is particularly relevant in evaluating the suggestion that he would reflexively uphold the executive branch's decisions. Those immigration cases involved retroactive application of an executive agency's legal interpretation, which was also at the center of Caring Hearts v. Burwell, a 2016 case in which Gorsuch said a company providing home health services could not be required to return Medicare payments deemed improper based on regulations that were "but figments of the rulemakers' imagination, still years away from adoption," when the claims were filed. "Surely one thing no agency can do," he said, "is apply the wrong law to citizens who come before it, especially when the right law would appear to support the citizen and not the agency."

And then there is the case of the bothersome burper. Last August, as Nick Gillespie noted at the time, the 10th Circuit upheld the arrest of a New Mexico seventh-grader who burped up a storm during P.E. class, to the amusement of his peers and the annoyance of his gym teacher. Gorsuch dissented:

If a seventh grader starts trading fake burps for laughs in gym class, what's a teacher to do? Order extra laps? Detention? A trip to the principal's office? Maybe. But then again, maybe that's too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal's office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that's so. Respectfully, I remain unpersuaded.

According to the New Mexico Court of Appeals, Gorsuch pointed out, the law under which the kid was charged, which makes "interfering with the educational process" a misdemeanor, "does not criminalize 'noise[s] or diversion[s]' that merely 'disturb the peace or good order' of individual classes." He added:

Often enough the law can be "a ass—a idiot"…and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people's representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands—and in that I see the best of our profession and much to admire. It's only that, in this particular case, I don't believe the law happens to be quite as much of a ass [sic] as they do.

That does not sound like a judge who bends over backward to side with the government.

Further evidence of Gorsuch's willingness to stand up for the rights of defendants, even when they are indisputably guilty and their crimes make them pariahs, comes from U.S. v. Ackerman, a 2016 child pornography case. Walter Ackerman was charged with possession and distribution of child pornography after AOL reported him to the National Center for Missing and Exploited Children (NCMEC), which opened Ackerman's email and examined photos attached to it. Ackerman argued that NCMEC, which is authorized by statute and charged with collecting information about possible child pornography offenses, qualifies as a governmental entity, or at least as an agent of the government, and therefore should not have examined his email without a warrant. In an opinion written by Gorsuch, the 10th Circuit agreed that NCMEC should be treated as governmental actor under the Fourth Amendment, although it left open the possibility that the search could be justified by an established exception to the warrant requirement.

Another search and seizure case from last year, U.S. v. Carloss, shows that Gorsuch is not shy about breaking from his colleagues when he thinks they are reading the Fourth Amendment too narrowly. In that case, which Damon Root highlighted last week, the 10th Circuit ruled that police officers needed no permission or justification to bang on a man's door and question him, with the aim of gaining "consent" for a search, notwithstanding multiple "No Trespassing" signs. In his dissent, Gorsuch emphasized the boldness of that claim:

The government suggests that its officers enjoy an irrevocable right to enter a home's curtilage to conduct a knock and talk….A homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn't enough to revoke the state's right to enter.

My point is not that Gorsuch routinely sides with criminal defendants; judging from the majority opinions he has written, he usually rejects their appeals. But contrary to the picture painted by opponents of his nomination, Gorsuch does not shrink from siding with unsympathetic defendants when he thinks the government is wrong. In a 2015 case involving a convicted murderer named Philbert Rentz, for instance, Gorsuch agreed that he was improperly charged with two counts of using a firearm in a crime of violence (each of which carries a five-year sentence) after he "fired a single gunshot that wounded one victim and killed another."

I doubt the positions that Gorsuch took in these cases, which gave "bad hombres" the benefit of legal niceties, would be endorsed by Donald Trump, who ran on a fearmongering "law and order" platform and has demonstrated little appreciation for the rights of the accused. And I am pretty sure that Trump, who has a long, amazingly petty history of suing people who hurt his feelings and wants to facilitate such claims by "open[ing] up those libel laws," would not approve of the conclusion Gorsuch reached in Bustos v. A & E Television Networks, a 2011 defamation case.

Jerry Lee Bustos, a prison inmate in Colorado, sued A & E after it used surveillance camera footage of him fighting with another prisoner in a documentary about the Aryan Brotherhood. Bustos complained that the program implicitly identified him as a member of the gang, which he was not. A federal judge rejected his defamation claim, and the 10th Circuit upheld that decision in an opinion written by Gorsuch. "Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise?" he wrote. "The answer is no. While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true. And that is enough to call an end to this litigation as a matter of law."

Another Gorsuch opinion dealing with freedom of speech suggests he has considerably more respect for the First Amendment than Donald Trump does. In the 2007 case Van Deelen v. Johnson, the 10th Circuit overturned a federal judge's dismissal of a lawsuit brought by a man who had irked officials in Douglas County, Kansas, by repeatedly challenging his property tax assessments. Michael Van Deeling claimed that the county commissioners had pressured him into dropping his challenges through threats and intimidation. The judge rejected Van Deeling's First Amendment claims on the ground that his tax challenges did not address a matter of public concern. "We write today to reaffirm that the constitutionally enumerated right of a private citizen to petition the government for the redress of grievances does not pick and choose its causes but extends to matters great and small, public and private," Gorsuch said. "Whatever the public significance or merit of Mr. Van Deelen's petitions, they enjoy the protections of the First Amendment."

Trump's critics (including me) were understandably concerned that his Supreme Court nominee would be a judge with authoritarian instincts who almost always sides with the government and would not be inclined to question the president's power grabs. Judging from Gorsuch's track record, he is not that guy.

NEXT: Trump vs. Schwarzenegger vs. Jesus's Sacrifice

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  1. Gorsuch, Twitter rage, Gorsuch, Gorsuch…

    Do you guys just play darts or topic-spin to pick what’s going to be the flavor of the day or what?

    1. The Gorsuch coverage seems pretty relevant today.

    2. I think it’s more a product of Reason writers’ fairly narrowed and uniform perspective than anything else.

    3. These are the topics of the day. I understand from a blog reader perspective that they can become tiresome, seeing one after the other, but look at it from the writers’ side. Different contributors are individually giving different (well, maybe not different) takes on the topics of the day.

      1. They all get their fake news assignments. The contributors are then free to choose their own newspeak from an approved style handbook.

  2. I’ve been pretty hard on the commenters here for bitching about anti-trump coverage… However, I now find Robby Soave to be as insufferable as everyone else. His articles are akin to something from Jezebel, but with a SLIGHT libertarian twinge.

    1. This isn’t a Soave article, it’s a Jacob Sullum special, and not that heavy on anti-Trump stuff.

      1. Not being a cunt, I just thought maybe you honestly mistook this for a Robby Soave piece.

        1. BTW–didn’t mean to go off on you, dude.

          Sarcasm and subtle humor don’t translate so well in the written word, so I apologize that I missed it in your post in the linx.

          1. Control the calamity that is your mammaries, Riven.

            TIWTANFL.

            1. This website is afraid of me… I have seen its true face. The threads are extended gutters and the gutters are full of blood and when the drain finally scabs over, all the commentariat will drown. The accumulated filth of all their ass sex and mexican weed will foam up about their waists and all the nasty women and aspies will look up and shout “Save us!” … And I’ll look down and whisper, “No.”

              1. I never understood why his mask was always morphing between pictures of my parents having sex.

                1. Don’t sell your parents short–they were innovators for their time!

                  I mean, no one else put two bodies together the way they did.

          2. Not a problem. Sometimes I really do think I might have Aspergers, or be somewhere on the autism spectrum. I say stuff that I think is funny but really isn’t. I probably just a be a boring, stereotypical, humorless engineer.

            Holy shit. Engineer… socially inept… maybe I really am autistic…

            *returns to stacking rocks in order of size since I find repetitive behavior so comforting*

            1. Sometimes I really do think I might have Aspergers, or be somewhere on the autism spectrum.

              i just reblogged you on my tumblr

            2. *…I probably should just be a be a boring, stereotypical, humorless engineer…*

              1. God dammit, still didn’t catch all the grammatical errors.

                If I was an aspie I’d probably be a lot more anal retentive about spelling and grammar checking my posts. Guess I’m just a douchebag.

            3. I wonder that about myself sometimes, too, and I’m not even an engineer. 😉

              It’s an easy thing to think about when you’re largely dispassionate and logical.

            4. I think you’d be better off figuring out who on H&R isn’t on the autism spectrum. Or a sexual deviant.

              No wait, that’s everyone.

              1. Yeah, pretty sure everyone falls into at least one of those categories.

                Then again–all the best people do!

  3. I think they pick their own topics for the blog, long-form magazine articles need more planning.

    “anti-constitutional actions”

    The left has utterly no shame.

    1. This s/b a reply to Riven

  4. Great! Djambi, the chocolate icing!

  5. Often enough the law can be “a ass?a idiot”…and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives.

    IOW what Roberts said before he proceeded to rewrite the law anyway.

    1. Roberts in that case talked about constitutional principles, then threw in a “but” and proceeded to ignore said principles.

      While Gorsuch in this case talked about the constitutional principles, then applied those principles.

      Which is the opposite of Roberts.

    2. He had to rewrite the law to avoid rewiting it by striking it down or maki g the executive implement it as was intended but turned out to be bad strategy.

  6. From what I’ve seen over the years, if any jurist is likely to be a “rubber stamp” for a sitting president, it’s been Democrat appointees. Just sayn’.

    1. Roberts was more of a copy/edit stamp.

    2. +1 Ruth Bader Gindsburg announcing how she would rule on Obamacare cases prior to them being briefed.

      1. My proggy friend who graduated law school last year gets all misty-eyed talking about meeting RBG. Makes me want to retch.

        1. Yup. Most law students are that way, IME. I got to shake Alito’s hand at an event last year, and nobody would’ve given a shit if I had told them. But if you’re in the same room as RBG, my gosh, it’s like seeing Jesus.

        2. Seeing her face to face would make me cry too.

          1. that’s just the embalming fluid’s pungency.

            1. I still think it was a bad idea digging her out of the Valley of the Kings.

  7. I am glad to see that Mr. Sullum isn’t knee-jerk opposing Judge Gorsuch just because Trump picked him, unlike the blogs on the left who had their pre-made “RESIST _______” signs ready to go the moment he was announced.

  8. Pretty much every serious, sober analysis of Gorsuch has come from conservative or libertarian news sources. The unseriousness of the Left is on full display here since last week was nonstop theater about the horrors of Trump ruling by executive fiat and since Tuesday they’ve switched to attacking Gorsuch as an “extremist” (prog-speak for Republican nominee, all Dem nominees are “moderates”) rather than maybe recognizing that Trump gave them the best pick possible if they’re genuinely afraid of budding autocracy.

    The same dynamic is playing out right now with sudden shock and outrage over that Navy SEAL raid in Yemen. Before it was hand-wringing over whether or not Trump would listen to the generals. Now it’s them fuming Trump lacks Obama’s apparent wisdom in not listening to the generals and declining to authorize the mission.

    1. The same dynamic is playing out right now with sudden shock and outrage over that Navy SEAL raid in Yemen. Before it was hand-wringing over whether or not Trump would listen to the generals. Now it’s them fuming Trump lacks Obama’s apparent wisdom in not listening to the generals and declining to authorize the mission.

      They’re gonna bitch and moan no matter what he does. Heads he’s prick, tails he’s still prick.

      1. And they don’t realize how counter-productive that strategy is. If everything Trump does is ‘wrong’, why (from his perspective, should he ever do anything ‘right’ unless it benefits him in some other way.

    2. It’s true, I’ve yet to see a thoughtful progressive media take on his pros and cons. (If anyone else has, I’d honestly love a link.) Everything I’ve read has clearly followed the writing process of drafting their thesis statement about his extremism before they even started digging up any specific cases to support it.

  9. The thing that should make Libertarians happy is that Gorsuch is not a fan of the government exercising powers that are not enumerated. His rulings show that he’s determined to keep things like the Commerce Clause from being used for powers that are not explicitly stated in the Constitution. And he doesn’t believe that the Fourth Amendment is meant to have “grey areas” in terms of its definition.

    As excitingly pro-liberty as he has the potential to be, it’s hard to forget that we almost had a president who would’ve radically altered the court in ways that would’ve been irreversibly anti-liberty for decades to come. She would’ve possibly had THREE to appoint as well. Insanity.

    1. Conversely, as mentioned in Root’s piece the kicked off Reason’s Gorsuch coverage, he may not be a fan of the government protecting rights that are not enumerated, either (such as privacy). That’s my biggest concern with him.

  10. Gorsuch’s Track Record Suggests He Won’t Be Trump’s Rubber Stamp

    From your keyboard, Jacob, to God’s ear.

  11. I’m liking the snark in those quotes from his opinions, and starting to kind of like this guy at least a little bit. This guy might be an even bigger asshole than I am.

    1. Yeah, he could be a British politician with those subtle cuts.

  12. Demand Progress . . . People for the American Way . . .

    Who are these organizations and why should I give a shit what they have to say?

    Notice, however, that no matter how credible or legitimate these organizations are, they have the bullhorn; they get to form the basis of critique for this article. They could say “Trump nominated a goat rapist,” and the article would be about how “Trump critics were understandably concerned that he would nominate a beastialist, but judging from Gorsuch’s record, he isn’t one.”

    1. I don’t think Sullum was quoting them as authorities; they’re well known lefty orgs, and he was calling their predictions into dispute.

      Frankly, I was worried about Trump nominating an authoritarian. Good to see it’s not true.

      1. I don’t think Sullum was quoting them as authorities

        I wasn’t criticizing the article (although I can see how it could be taken that way). Instead, I was pointing out how easy it is to manipulate the news cycle with a few non-profits and a twitter account.

    2. beastialist

      I believe the term you’re looking for here is “inter-species erotica enthusiast.”

      1. I am not sure about that. I think we will need Crusty to make an affirmative pronouncement on the correct terminology here.

      2. +1 Clerks II

  13. And I will say, as someone who strongly dislikes Trump, that I was surprised by this pick. I was certain he would pick some judge buddy of his, one who would actually rubber-stamp his ideas, because he knows that Democrats would object to whomever he picked, and Republicans would be forced to swallow whomever he picked. I am pleasantly surprised that he picked someone that has a resume as distinguished as Gorsuch’s. Not that he is perfect, but he is definitely far better than what I was expecting.

  14. If liberals were smart, they’d realize that Gorsuch is actually a better jurist for what they want than Garland would have been.

    If.

    1. Balko pointed out he’s better on 4A than Garland but the response was “broken clock is right twice a day”.

      1. Balko is very naive. Liberals don’t want a principled justice who is skeptical of executive power. They think they some day will get in power again. They want a hack who is skeptical of executive power when the wrong side is using it. That was Garland. Gorsuch is not that. Sure he might stop Trump a few times but he would also stop future Progressive Presidents. And we can’t have that.

    2. But Garland = Team Blue and Gorsuch = Team Red, so….

  15. The thing that people should like about Gorsuch is that he is skeptical of Chevron. Chevron is one of the least understood and worst decisions ever to come out of the Supreme Court. Chevron stands for the principle that executive agencies can interpret and enforce the law any damn way they want just so long as they can convince a judge that the decision wasn’t arbitrary or capricious. It is oven wrongly in my opinion described as meaning that courts should defer to agencies as long as what they do is reasonable. No, Chevron doesn’t impose any kind of objective reasonable test on agencies. It says the agency wins so long as it can provide a reasonable justification for its position. And that is different. That doesn’t mean objectively reasonable. It means a justification that a reasonable judge could find reasonable, not that this judge in this case does find reasonable. Basically under Chevron the agencies can do whatever the hell they want so long as they follow the right procedure and can dream up a plausible excuse. Thanks to Chevron the regulatory state is for most practical purposes immune from judicial review.

    1. oven wrongly

      I bet your secretary has a hell of a job editing your motions.

      1. Nah. I just reread and edit important things. This is always a first draft.

      2. And I meant “It is often, wrongly in my opinion, described…”

    2. John – I thought you might be overstating it, so I went to check:

      Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

      Jesus. ‘Can the agency possibly twist its mandate to justify an action?’ It’s a good thing most government workers are lazy and most don’t personally have much to gain.

      1. “Thank God we don’t get all the government we pay for.”

      2. The rule is that if the statute doesn’t unambiguously say you can’t do it, you can do it so long as there is some reasonable case to be made that you can.

        Chevron more than any other decision has given us the regulatory state we have today. Remember, even if Congress didn’t intend it, once an agency does it, the only way to undo the action is for Congress to amend the statute making it clear it didn’t intend the statute to mean that, which is rarely or never going to happen.

          1. I would say so, though its close. Wickard empowered Congress to regulate everything. But Chevron was in some ways worse. It empowered the executive to regulate anything it wanted, so long as there was a reasonable case they had the authority under statute and Congress didn’t tell them explicitly they could not.

            As bad as Wickard was, it at least required Congress to get its act together and pass a law and the President to sign it. Chevron says the executive can regulate things on its own, no law needed. And I think that to some degree is worse.

            1. I think that to some degree is worse.

              Seems like its far, far worse. Under Wickard, like you said, the Congress has to pass a law and the president sign it, there’s still some semblance of checks and balances. But Chevron pretty much says that the executive branch can regulate anything it wants all on its own as long there’s some tenuous reason they can claim that some judge will agree with.

              No wonder the progs are so afraid of Gorsuch getting on the SC.

            2. Such as the FCC claiming authority to regulate digital communications and thereby impose Net Neutrality rules without Congress amending their controlling law.

        1. So if you’re a Congressperson drafting legislation, you have to not only state the laws intentions and how that is to be accomplished within the legislation, you also have to think of every conceivable thing that you do not intend and make that clear as well?

          1. If it’s a significant enough ambiguity as to court lawsuits, it should be clarified by Congress, not by agency bureaucrats.

      3. IANAL, and I had never heard of Chevron until the last couple of days. No wonder we’re so fucked.

        1. I first heard about Chevron here in the comments, which has always been the best part of HyR.

    3. that should be easy to fix. just tell the left it’s about hurting Chevron the gas company.

  16. I’d be willing to take some major trade-offs if dueling became legal within four years.

    1. You want it legal with pistols? Rapiers? Will duels have to be conducted at dawn? Will seconds’ be required? Will courts enforce oral contracts relating to duels or will they have to be writing?

      1. European traditional code duello, with some modern updates. Public announcement of challenge, refusal can be honourable through a public apology or some other agreement, the challenged chooses date, time and method, seconds and a doctor/someone with basic medical experience required to be fully legitimate (lacking these is not illegal however). Before duel an agreement is drafted and signed by the two participants and witnessed by the seconds resolving the other of financial or legal obligation in the event of injury or death, only forfeited if the opponent breaks the code duello.

        Pistols, rapiers, swords in general, pugilism. Agreement sets the terms as to who is the victor, first blood, surrender, etc. but there’s allowed to be a more general “until someone gives up or dies” option.

        1. Without a culture based on honor and face, dueling doesn’t work. If you turn down a duel now only a few people would judge you for it and far more wouldn’t care that you avoided taking on an armed “lunatic” over an insult.

          1. Working on the honour culture is Step 2, and will take longer. Right now it’s greatest utility is against the people trying to justify violence while being entirely unwilling to actually deal with the response.

      2. Will seconds’ be required?

        Extroverts always making everything about themselves.

  17. All I care about is that he is a white male, because that is how we perpetuate the Caucasoid Hetero-Patriarchy.

  18. Demand Progress says Neil Gorsuch, President Trump’s choice to replace the late Supreme Court Justice Antonin Scalia, is the sort of judge who “will rubber stamp Trump’s assaults on Americans’ freedoms.” People for the American Way likewise warns that Gorsuch will be “a rubber stamp for the kind of anti-constitutional actions that we have seen over just the last week.”

    If what I read is true, Gorsuch sailed through previous confirmations unopposed. Is this because people were looking for exactly such a rubber stamp as they now vilify, or do they just completely lack any sort of honesty or self-reflection?

    1. This is rhetorical, correct?

    2. Kevin Williamson had an amusing piss-take on this the other day snarkily calling Ron Wyden a traitor for confirming a judge as radical as the Gorsuch of Wyden’s current rhetoric.

  19. Trump’s critics (including me)

    Yeah, I wouldn’t worry about being mistaken for some sort of alt-right Trumpista, Jacob. You work for reason.

    1. Gotta make sure, though. You never know who might be reading.

  20. Maybe Trump should horse trade here-a vote for Gorsuch and, if you can get Ginsberg to retire, I’ll re nominate Garland kind of deal.

    1. Are you Obamanite? No deals like that,Ginsberg will run away screaming soon.

  21. Writing understandable, memorable sentences – that’s the mark of either a good judge (like Scalia) or at least a judge whose contributions to the law will be influential for better or worse (like Holmes).

  22. Duellists, you say?

    *most excellent film.

    1. Caught that while channel surfing one day, great film.

  23. RE: Gorsuch’s Track Record Suggests He Won’t Be Trump’s Rubber Stamp
    The SCOTUS nominee is not afraid to challenge the government when it exceeds the law.

    As the wise man said, “We’ll see.”
    Its too bad these SCOTUS justices are not elected and held answerable for their decisions like some other public employees (excluding the bureaucrats).

  24. NR makes me like Gorsuch even more,rubber stamping Trump is impossible,every case is anecdotal & must follow the Constitution.

  25. I’ve been pretty hard on the commenters here for bitching about anti-trump coverage… However, I now find Robby Soave to be as insufferable as everyone else. His articles are akin to something from Jezebel, but with a SLIGHT libertarian twinge.

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