Neil Gorsuch

Neil Gorsuch Follows Justice Scalia's Footsteps on Criminal Justice

Civil libertarians have reasons to be pleased with Trump's SCOTUS pick.



If you were hoping President Donald Trump would pick someone to follow in the late Justice Antonin Scalia's footsteps, you should be happy with his selection of Neil Gorsuch. Like Scalia, Judge Gorsuch is a brilliant thinker, gifted writer, dedicated constitutionalist, defender of the separation of powers, and a judge willing to stand up for the rights of unpopular defendants if that's what the law requires.

I've written before about Justice Scalia's surprising (to some) opinions in which he defended the constitutional rights of criminal defendants, even though it was clear that Scalia the private citizen was a law-and-order guy. Scalia was especially impatient with vague criminal statutes that, he believed, failed to provide individuals with fair warning of the type of misconduct that might land them in prison.

In Sykes v. United States (2011), Justice Scalia railed against a vague provision of the Armed Career Criminal Act, a federal law that imposes lengthy mandatory minimum prison terms:

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be- sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt.

Four years later, Scalia prevailed upon his colleagues and led the majority to strike down the fuzzy provision that offended his sense of fairness. The Due Process Clause, he wrote for the Court, prohibits the government from "taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement."

Judge Gorsuch clearly shares Scalia's concern about vague criminal laws. In U.S. v. Games-Perez (2012), Gorsuch confronted the federal criminal law that prohibits felons from knowingly possessing firearms. The issue before Gorsuch's court was whether a conviction should be secured so long as the defendant knew he possessed a firearm, or, should the government be required to also prove that the defendant knew he was a felon when he did so.

A Scalia-minded textualist, Gorsuch argued that the "text of the relevant statutes" clearly put that burden on the government. And when a majority of his colleagues on the 10th Circuit panel found otherwise, Gorsuch opened his dissent with a strong statement about the very real harm individuals endure because of the court's misreading of the law:

People sit in prison because our circuit's case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today, this court votes narrowly, 6 to 4, against revisiting this state of affairs. So Mr. Games-Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land.

Like Scalia, Gorsuch is not known to have a soft spot for armed criminals. But also like Scalia, he believes that courts should err on the side of individual liberty when interpreting vague criminal laws. In fact, in a speech to the Federalist Society in 2013, Judge Gorsuch echoed Scalia's attack on overcriminalization in Sykes. Gorsuch said:

When he led the Senate Judiciary Committee, Joe Biden worried that we have assumed a tendency to federalize, 'Everything that walks, talks, and moves.' Maybe we should say 'hoots' too, because it's now a federal crime to misuse the likeness of Woodsy the Owl. (As were his immortal words: 'Give a hoot, don't pollute!') Businessmen who import lobster tails in plastic bags rather than cardboard boxes can be brought up on charges. Mattress sellers who remove that little tag? Yes, they're probably federal criminals too.

Whether because of public choice problems or otherwise there appears to be a ratchet, relentlessly clicking away, always in the direction of more, never fewer, federal criminal laws. …

But isn't there a troubled irony lurking here in any event? Without written laws, we lack fair notice of the rules we as citizens have to obey. But with too many written laws, don't we invite a new kind of fair notice problem? And what happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?

Matters of criminal law are not the only bases on which to judge a judge, but they can be very telling because the conduct at issue is often unsavory and public opinion is often on the opposite side of the law. In numerous cases, Justice Scalia showed that his fidelity to constitutional protections outweighed any personal biases he carried about suspected or convicted criminals. There are good reasons to believe Judge Gorsuch will act with similar restraint and humility. And that is one reason why Scalia's admirers are happy with Gorsuch's nomination.

NEXT: The anti-free-speech movement at UC Berkeley

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  1. Welcome to New Somalia. 🙂

  2. Guys, I have a proposal.

    On Tuesday, we have a day of silence on Hit and Run to honor their silence regarding her brutal arrest.

    No comments on the articles other than to apprise people who do comment that Tuesday is a day of silence.


    1. Would be a good plan, except trying to organize libertarians is like herding cats. I would be in, though.

    2. I expect Reason will cover this in a Brickbat at some point, it’s just routine thuggery by the police and not some great Constitutional crisis like whatever it was Trump twittered last night. Brickbats are generally something that happened at least a week or two ago, sort of a “me, too” response to somebody else’s outrage. It’s an appetizer post, not the main course.

    3. One tiny tweak to your idea, Tarran. On that day, on the links (either/both AM/PM), we actually post nothing.

      No-posts could attributed to absence, but no-content posts communicate the silence, as below:

        1. My goal is to depress their comment count. So that at the next editorial meeting, there’s a day that sticks out like a sore thumb.

          I don’t think empty posts would help with that.

          1. One post each on AM and PM links will dramatically decrease the counts.

            1. True, and it does have a beauty to it.

    4. to honor their silence regarding her brutal arrest.

      Her who?

        1. I hate it when people are purposely obtuse. It’s childish: “Na na na na na, I know something you don’t know!”

          1. It wasn’t purposeful. I wrote something longer. When I edited it down I forgot to substitute “sloopy’s mom” for “she” for what had now become sentence 1.

            1. Ok, I understand, sorry. So it really is Sloopy’s mom. Is there a place I can read what happened? Is it in a comment thread? I don’t always get through all the threads.

              1. The best place to look is the PM lynx from yesterday. There’s a bit about it in the AM lynx today, too. Articles linked and all that.

    5. I haven’t researched this at all – who’s brutal arrest?

    6. I frequently don’t comment for days at a time, so I’m in!

  3. Off topic: will Reason cover these protests:…..53852.html
    Please show you are not so US-centric (your readership is international, after all) and these protests are tied to libertarian causes much more than UC Berkeley protests against Milo giving a speech.

  4. And what happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?

    “Show me the man, and I’ll show you the crime.”
    – Lavrentiy Beria, head of Joseph Stalin’s secret police

    1. “Fortunately, I am not a man!”
      – Hillary Clinton

      1. (she gives a BJ to the Witch King)

  5. I beg to differ. His “reasoning” in the assisted suicide matter was shallow, contrived, and ignored the significant difference, let alone relative weight, of individual decisions versus fantastical and unsupported (unsupportable but let’s be generous) notion of “interests” of “the public”.
    That he proceeded to justify his “reasoning” on the basis of “I mean really, look how awful the other things are that this might justify” is merely the icing on the shitcake he delivered up. “Reasoning” my ass.

    He might be better than other possible or plausible choices, but he is not serious thinker by any measure.
    It is odd, to the point of absurdity, that those who find it ‘extreme’ or ‘improper’ that the Supreme Court found an individual right to abortion are nonetheless perfectly comfortable overriding individual rights with some notion of ‘public interest’. That nonsense has far far less support from the constitution than any thought that individuals might have primacy over their bodies.

    1. Fucking A.

    2. It is odd, to the point of absurdity, that those who find it ‘extreme’ or ‘improper’ that the Supreme Court found an individual right to abortion are nonetheless perfectly comfortable overriding individual rights with some notion of ‘public interest’. That nonsense has far far less support from the constitution than any thought that individuals might have primacy over their bodies.

      I don’t disagree with your stance on the issue exactly but I do disagree with the idea that Gorsuch isn’t a deep thinker as much as any given SCOTUS nomination, especially not one nominally a libertarian or made by a nominal libertarian, is going to be a mixed bag at best. He seems to be the pro-choice candidate that was promised. On top of that, he seems to be pro-Citizens United, unfriendly to the Commerce Clause, modestly anti-sex offender registry with a stronger opposition to general criminalizing of human behavior…

      It may be a bit of wishful thinking, but it’s entirely possible that, while he wouldn’t/doesn’t agree with assisted suicide on property and self-ownership grounds, he’s generally recognizing of various religious rights and generally predisposed not to criminalize varying behaviors.

      Certainly not a one true libertarian by any means, but superficially superior to picks vocally advocated by one true libertarian(s).

      1. Everyone has their ideological biases and blindspots. Even libertarians. His particular blindspots may be a reason to oppose him, or maybe not. They hardly mean isn’t a deep thinker in most areas.

        1. Yep. I think Gorsuch is wrong on this point, but that doesn’t make him some bozo who avoids thinking through his positions and judgments. I’m also curious if Shirley has read Gorsuch’s book, or is just going off the excerpt that was reprinted by Root and others. I mean, he wrote an entire book on this subject, and from what I’ve seen it’s not as simple as worrying about the implications of greater bodily autonomy. He’s big on the “inviolability of life” thing.

      2. Everyone has their ideological biases and blindspots. Even libertarians. His particular blindspots may be a reason to oppose him, or maybe not. They hardly mean isn’t a deep thinker in most areas.

  6. Good points by those bright legal minds. If ignorance of the law is no excuse for breaking it, but they pass millions of pages of laws (many of them imprecise), how can they expect us to be law abiding? Learning the Iliad and the Odyssey by heart is easier than learning the laws! It’s almost as if lawyers created a system where they made themselves the priestly class, able to prosecute every single one of us according to their whims.

    1. “Almost”?

  7. GOP SCOTUS noms have a formidable record of evolving in their thinking once they’re actually on the bench. You’ll excuse me if I withhold my applause for a couple of terms until I see some actual results rather than just the prospectus.

    1. +1 Penaltax

    2. If Scalia was the Peyton Manning of conservative justices, Gorsuch is at best the Deshaun Watson – looks real good at the lower level but hasn’t actually taken a snap in the big leagues. And remember that there were a hell of a lot of experts that thought Ryan Leaf was every bit as safe a bet as Peyton Manning to be a big star.

      1. +1 Tim Couch

        Souter is the Ryan Leaf of justices?

      2. Gorsuch is at best the Deshaun Watson

        So you’re saying Trump should’ve nominated Tebow?

  8. Root alluded to Gorsuch having some potentially troubling views on the protection of unenumerated rights. Anyone hear more about that? Root discussed it narrowly within the context of the 14A.

    Other than that what I’ve heard about Gorsuch is fairly positive.

    1. Short version, Gorsuch, either because he’s a textualist or because he’s got a blindspot, does not buy into unenumerated rights. I think it’s a combination because of his admitted anathema to assisted suicide, which he sees as a slippery slope for doing whatever you want to yourself (oh noes).

      1. Well, yet another reason to be a disappointed libertarian.

      2. It makes me sad that there’s a debate about this at all. It’s clearly and unequivocally stated in the 9th Amendment that there unenumerated rights. Unfortunately, the 9th and 10th amendments are dead letters for all intents and purposes.

        But I would think a “texualist” and an “originalist” would at least use the 9th to guide his thinking.

      3. So you’re saying he smells suspiciously like a Bork?

        Now I gotta wipe off my screen – I always reflexively spit when I say that name. And I ain’t talking euphemism, either. Bork’s “ink blot” crap to claim that the government can’t just make up Constitutional rights whenever it wants under some vague interpretation of the Ninth gets the whole idea of the Constitution backwards – you don’t look in the Constitution to see if you have a specific right to do something, you look in the Constitution to see if the government has a specific right to stop you from doing it . Everything not explicitly prohibited is permitted, Mr. Bork, and that’s from the citizens’ perspective, not the government’s perspective.

        1. Which is why I agree with the folks who say that Roe v. Wade was one of the worst SCOTUS decisions of all time. Yes, it was, because that “penumbras and emanations” crap was reading the right to an abortion into the Constitution and implicitly saying the only rights you have are the ones spelled out in the Constitution. Do I have a right to an abortion, does Congress have the right to ban abortion? Let’s look at the Constitution. Does it say in the Constitution that Congress has the right to ban abortion? No? Well, then I have the right to an abortion and Congress has no right to ban abortion. You don’t look at the Constitution and say, “well, there’s nothing there that says Congress doesn’t have the right to ban abortion so I guess they do have the right to ban abortion”. The Constitution is an enumerated list of powers granted to government and if it ain’t on the list they have no power.

        2. It’s impossible to enumerate every right, but I still wish the BOR had a thousand amendments. Relying on the 9th and 10th to protect unenumerated rights has proven to be an utter failure.

          1. Relying on the 1st, 2nd, 4th, 5th, 6th, 7th, and 8th to protect enumerated rights has proven to be an utter failure.

            Even the 3rd took a hit recently.

            1. I’m not as negative. The protections aren’t as strong as I would like but, all things considered, free speech, freedom of assembly, religious freedom, gun ownership, and jury trials are all still taken seriously. They are certainly in better shape than they otherwise would be.

              1. [grumpy face]

        3. I know you’re unlikely to see this, as I am posting quite late. I just wanted to suggest that the dichotomy you propose can’t be right. I’m writing this in haste, so please excuse the verbosity. ^_^

          The Tenth Amendment gives states plenary power (except as otherwise provided in the Constitution). So “look[ing] in the Constitution to see if the government has a specific right to stop you from doing it” answers only whether the federal government can prohibit you from doing something?not whether a state can do it (as it presumptively can under the 10A). (And even then, this analysis isn’t right, as the federal government cannot use its admittedly enumerated powers to infringe upon a fundamental right.)

          This gets us back to where we started: what rights can no government encroach upon? This is where the BOR comes in (as incorporated against the states yada yada). If the BOR saves you, great. If the BOR is silent on the issue and you want to rely on the Ninth Amendment, the question arises: what rights are specifically protected by the Ninth Amendment? As noted above, just looking to the Constitution doesn’t immediately answer this question.

          This is the conundrum for judges deciding cases. It is an extremely vexing inquiry. Most judges (even bad ones) don’t like the prospect of just making stuff up, so they try to use some kind of framework to divine the types of rights that seem fundamental. This is where the reach of the 9A really begins.

    2. By “textualist,” what they really mean is “deferential to congress” rather than “deferential to the constitution.”

      I’ve given up on the idea that SC justices are “liberal” or “conservative.” Those terms seem to have no meaning.

    3. he joined the majority in Rodriguez too which is causing him grief in the 2A blogosphere. majority found Terry stop permissible if carrying even in open carry/shall issue concealed carry states.

  9. This comment section is a sewer of vitriol and filth. I’ve had enough of these trolls – they drown out the moderate and reasonable voices such as mine. Time for Reason to shut it down.

    1. You are hilarious.

      1. Do not feed.

    2. It’s so tiresome the way you holier than thou progressive libertarians keep arguing that we should care about keeping the government out of abortion politics and war making. The real battle is with these annoying college kids who are just so boring when they go to protest fascism. So 1930s.

    3. “Too many people are saying whatever they want! I can’t handle that! Shut it down!”

  10. How quickly we forget “new professionalism”.

    1. I certainly haven’t. I only wish Scalia could have gotten a beatdown from the New Professionals at some point.

      1. Who is to say he didnt?

  11. The reason why I like Trump better than Obama is because he has the balls to hang up on world leaders and threaten war with Mexico. Trump is like those awesome guys I hung out with at the Less Than Jake punk show I went to last night– not like those anarchists at Berkeley, who went to the Lisa Loeb show.

    1. It may be satisfying but that doesn’t make it a good idea. I’d hope that world leaders were capable of having frank, BS-cutting conversations on important issues, but I also hope they’d have the composure to remain respectful.

      1. i too practice false courtesy, sir. /sweeping bow

    2. The reason why I like Trump better than Obama is because he has the balls to hang up on world leaders and threaten war with Mexico.

      No surprise that you support a fellow blowhard.

      1. Oh great, a new Hihnfection.

        I AM NUMBER 9!

        1. What does Swiss Servator mean by Number 9?

          It’s a list of fascists who defend Ron Paul’s attempt to deny an entire group of citizens ANY defense of their constitutional rights — the first such moral atrocity since slavery. But they’re only niggers and faggots to his cult..

          “I supported the Defense of Marriage Act, … I have also cosponsored the Marriage Protection Act, which would remove challenges to the Defense of Marriage Act from the jurisdiction of the federal courts

          Deny constitutional protections Pure. unadulterated bigotry. In his own words. REJECTED by Congress.

          And Servator is actually PROUD of his shameful heresy.

      2. The thing that really matters is how much Trump pisses off the proggies. so, I really don’t care what old people like you think. I’m so post-modern postmodernist.

        1. No surprise that you support a fellow blowhard.

          By the same principle, Hihn supported Bernie, another doddering old fool who should stop making an ass out of himself.

          1. SuageFree and GILMORE seem compelled to make public asses of themselves at every possible occasioin. Now the dumbfucks say I’m a proggie … because ONLY proggies refuse to bow down to the alt-right.

            Sp (laughing hysterically) I again link to the web archive of my political writing. Readers are invited to scan the index of content — like taxes, healthcare and governance — and join me in ridiculing GILMORE and SugarFree



            (boldface in both self-defense and ridicule)

  12. He’s an awesome president. The way he pisses off all these people who don’t like the government. He’s our Nitzer Ebb compared to Obama’s Cranberries.

    1. I agree that Trump’s an awesome President. Of course, I also think Johnny Knoxville is the height of sophisticated wit so YMMV.

    2. Word, a Nitzer Ebb ref.

      I’d also love to hear about your record trading with Diplo. Used to love trading records with fellow djs.

      1. Word! I hung out with Skrillex last night.

  13. Scalia also supported bans on assault weapons, noting (correctly), that there was no such thing at our founding. The militia literally grabbed the same rifles they used for hunting. But, also wisely, he’d never support restricting the second amendment to hunting rifles.

    But it’s laughable to swallow his bullshit that he’s an originalist, since he explicitly denies the the Judiciary as a branch co-equal to the other two. And he, like many on the loony right, refuses to even see the 9th Amendment restrictions on ALL levels of government. Gorsuch indeed seems to fit that mold, despite — also like Scalia — other virtues..

    Criminal law is important. but only a tiny segment of the Court’s most fundamental responsibility — to defend the broad brush of equal, unalienable and/or God-Given rights … Life, Liberty, Pursuit of Happiness and all the others, which are all precisely equal to each other.

    Trump’s latest pandering may turn out to be his scariest (so far). His latest attack on the constitution is that he will tear down the wall between church and state. His plot for Gorsuch? Is NOTHING sacred to this authoritarian?

    1. I listened to a desparate Syrian refugee this morning talking about how Trump’s EO would keep her from visiting her parents in Aleppo because she potentially couldn’t get back into the US. What’s more important though is calculating just how annoying kids at Milo Yiannopoulos protests can be. I enjoy ironic detachment and am bored.

      1. Your sense of what’s important follows your established devotion to blind tribalism.

        You no doubt also don’t care about the 88-year-old legal resident who was separated from her son. forced back to Iraq, and died. Unalienable rights are just chickenshit to the alt-right.

        I enjoy ironic detachment

        From elementary human decency it appears

        And that rant had absolutely nothing to do with my comment that you responded to, the topic on this page, or much of anything. I believe it’s called trolling?

        1. That was a reply to a comment that disappeared????
          Are they now deleting trolling?

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