Civil Liberties

But Gorsuch!

Trump's first Supreme Court pick is better on civil liberties than his critics want to admit.


When Donald Trump nominated Neil Gorsuch to the Supreme Court in January 2017, Demand Progress warned that the judge was "an extremist" who would "rubber stamp Trump's assaults on Americans' freedoms." People for the American Way likewise described Gorsuch as "an ideological warrior who puts his own right-wing politics above the Constitution, the law and the rights of everyday people." During Gorsuch's confirmation hearings that March, Sen. Mazie Hirono (D–Hawaii) worried that "you rarely seem to find in favor of the little guy."

Even before Gorsuch heard his first case as a Supreme Court justice in April 2017, it was clear from his decade on the U.S. Court of Appeals for the 10th Circuit that such attacks were unwarranted. Far from screwing over "the little guy" at every opportunity, he had shown unusual sensitivity to the predicament of vulnerable people confronted by implacable and frequently inscrutable agents of the state. "Among the folks that Trump had on his short list," observes the Ohio State University law professor Douglas Berman, "Gorsuch seemed more defendant-friendly than most of the others," and "that's carried over to the Supreme Court."

During Gorsuch's first two terms on the Court, he took positions that should be applauded by people who care about criminal justice and civil liberties, including the critics who were so quick to condemn him as a heartless authoritarian. Except for capital cases, where "he doesn't seem to have much of an affinity for the defense position," Berman says, Gorsuch is "distinctly concerned about safeguarding defendants' procedural rights." While judges across the spectrum have long been willing to compromise civil liberties in cases involving unpopular defendants such as drug dealers and sex offenders, Berman notes, "Gorsuch has, to his credit, said, 'No, no. The rules are the rules.'" His work shows that an honest attempt to apply the "original public understanding" of constitutional provisions frequently yields libertarian results, limiting government power and protecting individual rights.

That's not to say Gorsuch himself is a libertarian. In his 2006 book on assisted suicide, he explicitly rejected the "libertarian principle" that would require legalization of that practice. The same principle, he argued, would also require the government to allow "any act of consensual homicide," including "sadomasochist killings, mass suicide pacts…duels, and the sale of one's life (not to mention the use of now illicit drugs, prostitution, or the sale of one's organs)." If the government lets people kill themselves, in other words, it might also have to let them smoke pot.

Nor do Gorsuch's originalist methods always lead him to conclusions that libertarians like. Last June, for instance, the Supreme Court overturned a Tennessee law that required people to live in the state for at least two years before applying for a license to sell liquor. Seven members of the Court deemed that protectionist policy inconsistent with the Commerce Clause, which was supposed to prevent interstate trade barriers. Gorsuch—joined by Justice Clarence Thomas, another originalist—dissented, arguing that such residence requirements have a long history in the United States and exemplify the sort of state policies that were protected by federal statute before Prohibition and by the 21st Amendment afterward.

On the whole, however, "Gorsuch appears to be on his way to being the most libertarian justice we've had on the Court in some time," says Case Western Reserve University law professor and Volokh Conspiracy blogger Jonathan Adler. And on several issues that progressives in particular care about, such as privacy, due process, and police abuse, Gorsuch has been notably less deferential than the other conservative justices, with whom he has repeatedly parted company. "He's someone who takes express constitutional guarantees very seriously," Adler says, "even where they might conflict with what we would expect a conservative to want."

For the president's opponents, "But Gorsuch!" is a gibe aimed at conservatives who cite the nomination as vindication of their support for Trump. But for libertarians, there is an element of truth to that line of defense: While Gorsuch may not be the saving grace of the Trump administration, he is far more inclined to question authority and defend "the rights of everyday people" than the man who picked him.

'What's Left of the Fourth Amendment?'

Gorsuch's commitment to enforcing the Fourth Amendment's ban on "unreasonable searches and seizures" is one of the clearest ways in which his record belies progressives' claims that he tends to approve "assaults on Americans' freedoms."

On the 10th Circuit, Gorsuch wrote the majority opinion in the 2016 case United States v. Ackerman, which held that the National Center for Missing and Exploited Children conducted a search within the meaning of the Fourth Amendment, which generally requires a warrant, when it opened an email forwarded by AOL that contained child pornography. He concluded that the organization, which has special duties and privileges under federal law, qualified as a "governmental actor," or at least the government's agent. Just as important, he thought it clear that email should be treated as "papers" or "effects" protected by the Fourth Amendment.

"Of course, the framers were concerned with the protection of physical rather than virtual correspondence," Gorsuch wrote. "But a more obvious analogy from principle to new technology is hard to imagine and, indeed, many courts have already applied the common law's ancient trespass to chattels doctrine to electronic, not just written, communications."

Also in 2016, Gorsuch dissented from the 10th Circuit's decision in United States v. Carloss, which held that police did not violate the Fourth Amendment when they ignored several "No Trespassing" signs on the way to a "knock and talk" at a home where they ultimately discovered methamphetamine labs. The government, he wrote, seemed worried that "if clearly posted No Trespassing signs can revoke the right of officers to enter a home's curtilage, their job of ferreting out crime will become marginally more difficult." He noted that "obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits." In any case, he said, "our job" is not "to weigh those costs and benefits but to apply the Amendment according to its terms and in light of its historical meaning."

That is what Gorsuch thought the Supreme Court should have done in Carpenter v. United States, the 2018 decision that said police generally need a warrant to obtain cellphone location data. Gorsuch dissented, not because he disagreed with the result but because he objected to the majority's reasoning.

The Court made an exception to the "third-party doctrine," which says the Fourth Amendment does not apply to information that people voluntarily share with others, even when they do so with the understanding that it will be kept confidential. The majority held that, notwithstanding the third-party doctrine, people have a "reasonable expectation of privacy" in the information about their movements that cellphone companies collect while completing their calls. Gorsuch argued that both standards are misbegotten.

Amplifying the concerns raised by Justice Sonia Sotomayor in a 2012 case, Gorsuch said "the Court has never offered a persuasive justification" for the third-party doctrine, which it formulated in the 1970s. Like Sotomayor, he was dismayed by the doctrine's implications in an age when people routinely store sensitive information on computers outside their homes.

"What's left of the Fourth Amendment?" Gorsuch asked. "Today we use the Internet to do most everything. Smartphones make it easy to keep a calendar, correspond with friends, make calls, conduct banking, and even watch the game. Countless Internet companies maintain records about us and, increasingly, for us. 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."

Nor did Gorsuch think that the "reasonable expectation test," which derives from the 1967 case Katz v. United States, makes much sense, since it calls upon judges to determine which expectations are reasonable. "Katz has yielded an often unpredictable—and sometimes unbelievable—jurisprudence," he wrote, citing cases in which the Court had upheld warrantless aerial surveillance of private property and warrantless rummaging through people's trash.

Instead, Gorsuch advocated "a more traditional Fourth Amendment approach" that asks whether the thing to be searched qualifies as someone's property. He noted that federal law treats cellphone location data as "customer proprietary network information," which suggests the records belong to the customer and cannot be perused at will by the police.

Prove It

The Fourth Amendment is not the only area where Gorsuch has often sided with criminal defendants. Like Antonin Scalia, the justice he replaced, he is a stickler for requiring prosecutors to prove all the elements of a criminal offense.

In the 2015 case United States v. Makkar, Gorsuch wrote a 10th Circuit decision overturning the convictions of two convenience store owners who were accused of selling "incense" containing a synthetic cannabinoid. He noted that the law under which the defendants were charged, the Federal Analogue Act, required either proof that they knew they were selling a banned substance or proof that they knew the substance was "substantially similar" in its effects and in its chemical structure to a Schedule I or II drug. Prosecutors chose the latter route but did not even attempt to prove the second element, Gorsuch observed, and the jury instructions improperly relieved them of that burden.

In 2012, Gorsuch dissented when the full 10th Circuit declined to rehear a case, United States v. Games-Perez, in which a three-judge panel had rejected a defendant's argument that he should not have been convicted of illegally possessing a firearm because he did not realize he had a felony record. Gorsuch thought that claim was plausible given what a judge had repeatedly told the defendant, Miguel Games-Perez, about the consequences of his deferred state sentence for attempted robbery. "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," Gorsuch wrote. "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."

After joining the Supreme Court, Gorsuch further demonstrated his determination to uphold the rights of criminal defendants in cases involving the Sixth Amendment, which guarantees the right to trial by jury. This is another way in which Gorsuch has emulated Scalia, who played an important role in two landmark decisions establishing the principle that juries must determine facts that increase a defendant's punishment beyond what would otherwise be authorized by statute. Those decisions made federal sentencing guidelines, which had previously required judges to increase penalties based on facts they determined, advisory rather than mandatory.

This year Gorsuch wrote the plurality opinion in United States v. Haymond, which involved a man who had been convicted of possessing child pornography and who, after serving more than three years in prison, was again caught with child pornography while on supervised release. That second offense, which was never considered by a jury, triggered a five-year mandatory minimum sentence. "In this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt," Gorsuch wrote. "As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments."

Gorsuch's opinion was joined by three members of the Court's liberal wing: Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justice Stephen Breyer agreed with the judgment but wrote a separate concurring opinion to express concern about the decision's potential impact on run-of-the-mill cases in which judges send people back to prison because they have violated the terms of their supervised release. Gorsuch's fellow conservatives vociferously dissented.

Try, Try Again

In two Sixth Amendment cases that the Court declined to hear, Gorsuch, joined by Sotomayor both times, argued that the issues presented made them worthy of review. One case, Hester v. United States, posed the question of whether facts supporting court-ordered restitution in criminal cases also need to be determined by a jury. The other, Stuart v. Alabama, involved a woman who was convicted of drunk driving based on blood testing by an analyst who never appeared in court.

Given the "decisive role" that forensic evidence often plays in criminal cases, Gorsuch said when the Court declined to hear Stuart, it is vital that defendants have a full opportunity to challenge it. "The Constitution promises every person accused of a crime the right to confront his accusers," he wrote. "That promise was broken here." Scalia, who in 2009 wrote a majority opinion that said a defendant had a Sixth Amendment right to question the state laboratory analysts who tested a substance they determined to be "cocaine of a certain quantity," probably would have agreed.

One of Gorsuch's most striking pro-defendant stands was his dissent in Gamble v. United States, a 2019 case in which the Court declined to reconsider the "dual sovereignty" exception to the Fifth Amendment's ban on double jeopardy. According to that longstanding doctrine, serial state and federal prosecutions for the same conduct do not constitute double jeopardy because they deal with distinct offenses defined by "separate sovereigns," even when the definitions are the same. Gamble involved a man with a felony record who was convicted and punished under both state and federal law for illegally possessing a firearm, which seven justices—all but Gorsuch and Ginsburg—deemed constitutional. The defendant was not prosecuted twice for "the same offence," they said, because two levels of government had separately defined his behavior as a crime.

"The government identifies no evidence suggesting that the framers understood the term 'same offence' to bear such a lawyerly sovereign-specific meaning," Gorsuch wrote in his dissent. To the contrary, he said, British common law, the Fifth Amendment's history, contemporaneous legal commentary, and early court cases all indicate otherwise. "A free society does not allow its government to try the same individual for the same crime until it's happy with the result," he said. "Unfortunately, the Court today endorses a colossal exception to this ancient rule."

The threat of dual prosecution grows as federal and state criminal codes expand, increasing the areas where they overlap. Gorsuch also worries about that trend, as illustrated by his dissent in Nieves v. Bartlett, a 2019 case in which the Supreme Court rejected a man's claim that police had violated his First Amendment rights by arresting him for disorderly conduct because his opinions irked them. Most of the justices thought that claim was barred because the cops, regardless of their motivation, had probable cause to arrest the guy.

Gorsuch disagreed. "History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively," he wrote in a characteristically eloquent dissent. "In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age." That dissent, says Ohio State's Berman, shows Gorsuch "is not only able but eager to notice that, basically, cops get to do whatever they want."

'A Vague Law Is No Law at All'

Another conspicuous theme in Gorsuch's work is his concern about vague statutes, which violate due process because they do not give people fair notice of what the law requires. That concern was apparent in Makkar, the 10th Circuit case involving analog drugs, where Gorsuch noted that the federal law banning them raises "vagueness concerns," since "it's an open question…what exactly it means for chemicals to have a 'substantially similar' chemical structure—or effect." The importance of fair notice also figured in United States v. Rentz, a 2015 10th Circuit case in which Gorsuch wrote the majority opinion holding that a man who fires a gun once, injuring one person and killing another, could not be charged with two counts of "using" a firearm in the course of a violent crime.

Vagueness was central to Sessions v. Dimaya, a 2018 Supreme Court case involving a legal permanent resident with two burglary convictions whom the government sought to deport as an "aggravated felon." Under the Immigration and Nationality Act, that category included anyone who commits a "crime of violence," defined as a felony "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." In 2015 the Court had concluded that similar language in the Armed Career Criminal Act was unconstitutionally vague. Five justices—the liberal wing plus Gorsuch—concluded that the same logic doomed the immigration provision.

"Vague laws invite arbitrary power," Gorsuch wrote in his concurring opinion. "Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien's crime of conviction involves a substantial risk that physical force may be used. But what does that mean?…The truth is, no one knows. The law's silence leaves judges to their intuitions and the people to their fate."

This year, the same justices teamed up in United States v. Davis to overturn a provision imposing mandatory minimum sentences on people who use firearms while committing a "crime of violence," based on the same definition that the Court found unconstitutionally vague in Dimaya. "In our constitutional order, a vague law is no law at all," Gorsuch wrote in the majority opinion. "Only the people's elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements."

Unbridled Bureaucrats

Even when laws are not unconstitutionally vague, they may be ambiguous enough that people disagree about their meaning. When that happens, the Supreme Court has said, judges should defer to the interpretation favored by the agency charged with implementing the law. Gorsuch is a critic of that rule, known as "Chevron deference," because he thinks it violates the separation of powers by inviting executive branch officials to interpret and rewrite the laws they're supposed to enforce. More generally, he argues that administrative agencies have too much power, which threatens individual liberty. Those positions help explain Gorsuch's reputation among progressives, who perceive him as a threat to crucial economic, environmental, anti-discrimination, and public safety regulations.

But Gorsuch's critique of the administrative state is consistent with a constitutionally informed wariness of government power, an attitude that also underlies his positions in cases where he is allied with progressives. In Gutierrez-Brizuela v. Lynch, the 10th Circuit case that is most commonly cited as an example of his opposition to Chevron deference, Gorsuch sided with an immigrant fighting deportation, as he later did in Dimaya. Two years ago in Mathis v. Shulkin, another case where he criticized unfettered bureaucratic discretion, he said the Supreme Court should have heard a veteran's challenge to an arbitrary denial of disability benefits. In Gundy v. United States, a 2019 case in which the Court upheld a federal sex offender law that gives the attorney general broad discretion to decide whether and how its registration requirements should apply to people convicted before the law was passed, Gorsuch's dissent sided with, as he put it, "some of the least popular among us."

As progressives recognize in some situations, it's "the little guy" who is most vulnerable to an executive branch that exceeds its constitutional authority. The same goes for policies that impinge on rights progressives rarely recognize as important. In 2017, Gorsuch joined Thomas in objecting when the Supreme Court declined to hear a challenge to California's discretionary handgun carry permit law, which favors the rich and famous over people of modest means who live in dangerous neighborhoods. He has also praised Thomas' dissent in Kelo v. City of New London, the 2005 case in which the Court approved the taking of property through eminent domain for economic redevelopment. That decision dismayed people across the ideological spectrum because it so clearly empowered wealthy, politically influential interests to bulldoze over the plans and expectations of ordinary people with less pull.

While I don't expect most progressives to agree with Gorsuch about gun control and property rights, they should at least be willing to recognize when his anti-authoritarian instincts work in their favor. "Folks on the left are scared by a certain type of jurisprudential boldness," Berman says, because they see Gorsuch as a threat to important precedents in areas such as the administrative state and abortion rights. In this context, even seemingly progressive positions can look scary.

Although Case Western Reserve's Adler is not sure Gorsuch's take on double jeopardy is historically correct, he says the justice's willingness to revisit the dual sovereignty doctrine shows "he doesn't want to hear that it's OK to keep violating someone's rights or to keep letting people get screwed over just because we've been doing it for a long time." In fact, Adler says, "he is, with the possible exception of Justice Thomas, the least enamored of precedent on the Court, and much of the progressive left is really worried about one precedent in particular"—i.e., Roe v. Wade, the 1973 case in which the Court ruled that the Constitution protects a right to obtain an abortion. Adler notes that "Justice Gorsuch's originalism, combined with his view of precedent, means that he is almost certainly a vote to overturn Roe."

The same could not be said of Merrick Garland, the Obama-nominated Scalia replacement who was blocked by Senate Republicans in 2016. But at the same time, Adler says, Gorsuch has been "far more favorable to criminal defendants than a Justice Garland would have been." For progressives, Gorsuch brings benefits as well as risks, but the latter get a lot more attention. Viewed in a more balanced manner, Gorsuch's nomination should be seen as a redeeming feature of the Trump administration on the left as well as on the right.

NEXT: Roger Stone Found Guilty on All Counts

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  1. For the president’s opponents, “But Gorsuch!” is a gibe aimed at conservatives who cite the nomination as vindication of their support for Trump. But for libertarians, there is an element of truth to that line of defense…

    People have lost their minds over Trump, or his election has exposed the absurdity of believing that any of our pundits, journalists and leaders are great thinkers. But Gorsuch is a real net positive even anti-Trump libertarians have to admit that we were unlikely to get from another administration. (If only the president’s judgment was consistently this good.)

    1. Yeah, Trump’s follow-up nomination was a lame swamp creature.

      1. Yeah, after Gorsuch Kavanaugh was such a disappointment. But hey, after Trump’s in his second term there’s a pretty good chance RBG will finally croak (personally, I’d keep her over Kagan or Breyer any day, but alas they’re still kicking). When that happens, we might very well get another civil libertarian on the court. You can check out the Federalist Society’s short list to see some of the folks who’d likely get talked about again. There’s a few real gems on there.

      2. Everything that rises from D.C. is a swamp creature. Need more western, non california, judges elected.

        This is why the attempts to move various agencies like BLS out of D.C. is so important.

      3. We’ll see what he does for the next one.
        I think Kavanaugh was largely forced on him by Kennedy and establishment Rs

    2. I am not a Trump supporter, and I agree.

    3. Ditto — the best thing Trump has done, aside from clobbering Hillary and distressing the Democrat to the point that all Democrats are now unalloyed socialists.

      Everything else is just a wash. His deregulation is better than nothing, but that’s a low bar and just temporary. His interventionism is even weaker temporary tea. His tax cuts have been outweighed by his tax increases. He could have done a lot more for gun rights, easily, but that is also down to timid Congressional Republicans, like the two trying to make the other take the initiative.

      His longest lasting good might be bringing the Presidency into disrepute, except any interest the Dems or even GOP have in reclaiming Congressional initiative and power are only temporary until the next President comes along.

      1. So you’re still going with tariffs are taxes despite a signal in reverse to the suggestion in inflationary data? Sometimes you have to work past the simple slogan and actually go look at what occurred.

        1. There’s no way that the tariffs even approach the size of effect of the tax cuts.
          Just wish they’d taken that SALT deduction down to 0

        2. Tariffs are taxes. Disputing that is about as economically illiterate as it gets.

          1. You keep repeating it without supplying data just shows an economic ignorance on your part. For an example…

            Suppliers a and b both supply a good. Each one can supply enough for all demand. A tariff on B would cause all demand to go to A but it would be a tax as demand is covered by B. The externality here would be a monopoly formation not a tax.

            Heres the thing about simple slogan economics…. they are always wrong because the market is complex. Demand shifts, markets change, suppliers come and go. Putting a tariff on a supplier can cause a change to a market without a change to the cost of a good or a tax. This is where your ignorance is shining through. This is why we look at data.

            Any decent economist will tell you two things, there are no absolute rules and they will have to wait for tomorrow to tell you why they were wrong today.

            You completely ignore many key elements of economics with your ignorant worship of all tariffs are taxes. Game theory is a valid consideration of economics. You refuse to admit this.

            1. Would not be a tax*

              Consumers would switch to A with no tax on them on the example.

              Likewise a tariff of a good easily replaced or supplemented with another causes a market switch, not a tax.

              Your economic simplicity is telling.

              1. You’re skipping a step.

                A tariff only causes a monopolistic shift to a single provider if the size of the tariff covers the marginal difference in cost of production between A and B at all volume points.

                If B has a lower monetary cost to produce because of either specialization, lower cost of materials, or externalities (ex: pollution) than A, and the tariff doesn’t cover the full difference in production costs then you don’t get monopolistic switching to A, instead you get B paying the tariff because they can still undercut As prices.

                But if their cost of production isn’t static – and it’s never static – then there may be mixed production values. The simplest version of this is with either an integrated mine that has limited production capacity, so that if you want to produce more than your mine allows you have to buy on the market and lose vertical integration, or a factory using water power that would have to start buying electricity to increase production – as long as their volume is within the water power capability then power is free, once they produce enough they have to buy a new power source.

                1. So is this why USS seems to be having more trouble than Nucor.?

                  My understanding is that there is overall decrease in demand, also something about a mining disaster in Brazil raising the price of ore. USS operates blast furnaces. Nucor uses scrap steel and smaller arc furnaces and is thus able to more rapidly react to these kinds of market changes. Thus tariffs have had no positive effect on the steel industry and the imagined increase in industrial capacity remains imaginary.

                  Is that what happened?

          2. No response? Sounds about right.

      2. Well, tarnishing the image of the presidency in the public’s mind could be useful for motivating some of the less engaged folks to consider that the libertarians might have a point, provided we use the opportunity to drive it home. I think anyone who’s claiming that Trump is some kind of unique existential threat needs to get a prescription to handle their TDS, though. He’s done a few good things for us, mostly bad, and that’s pretty similar to nearly all presidents in recent history. There are always some freedom-obsessed kooks like us around, so we can keep pushing back until we get the message across.

        1. I keep asking for the mostly bad part, and rarely do I get an answer outside of tariffs. So what is the mostly part?

          Trump has been hampered more than any President in history through both the judiciary, investigation, and the media. His record isn’t that deep, but what has been done has been relatively good. This is true of the judges he has appointed (kavanaugh being a disappointment), the tax decreases, the decreased regulations and new rules in place to keep them decreasing, getting NATO to contribute more as they are required to by agreement, etc.

          I’m not sure where the “mostly bad” actually is. Even if you are an open border zealot, most of what he has done has been blocked by the courts, so not even that really counts.

          1. He presents himself as low class constantly?

            “They let you grab them by the (genitalia).” Ring any bells? Not the caricature that those with TDS claim he said (that he actually does so), merely the uncouthness of the actual statement itself.

            Anything he says on Twitter?

            The problem seems (to me) that many expect a genteel President, and we elected Andrew Jackson again.

            For those who don’t subscribe to the Imperial Presidency, and instead look at the role as an investor might look at a fast food restaurant manager in his portfolio, that’s not really an issue. We care more about what he does than how he presents it – of course we’d like a nicer presentation, but not to trade off results.

    4. I think we are all in agreement that Gorusch is a blessing and that Trump should be praised for nominating him.

      1. I think anyone who thinks Trump deserves praise for Gorsuch is seriously giving him too much credit.

        We know how Trump chooses his nominees, right? When he first got in, he let party hacks like Priebus and McConnell more-or-less dictate things for him. Someone gave him a list of SCOTUS picks and said, “choose one.” And he either didn’t care very much about the choice, or he was essentially told that he would lose support in the Senate if he didn’t at least do this one task for them, choosing their own vetted nominees.

        I suspect that we’re now in a phase of his presidency – and this will be all the more true if he is re-elected – where his only criterion for SCOTUS will be, “Will this person vote to protect me, no matter what?” He’s not going to be thinking about the long-term conservative majority or even specific Republican priorities like abortion or gun rights. You can see this in many of his picks for people lower down – “Will this person do what I want them to do?” That’ll be all that matters.

        We’ve seen this in the way he’s managed cabinet-level posts, as well. He didn’t want Barr to head an honorable DOJ, or Pompeo a competent State Department. He wanted a defense attorney and yes-man. And we’ve seen it in the two SCOTUS picks so far, in the trend they lay out. Gorsuch’s judicial philosophy has nothing to do with Trump’s ambitions. But Kavanaugh all but threatened Democrats for attempting to block his confirmation – even though I expect that he’ll mellow out a bit into a Roberts-Alito mix. So I fully expect that his first job requirement for his next pick is going to be, “Do you agree that I can do whatever I want?”

        1. “I think anyone who thinks Trump deserves praise for Gorsuch is seriously giving him too much credit”

          No one cares what you think though.

              1. Gosh, I feel so bullied, I’m going to go cry now.

                1. Put some effort into it.

    5. Unlikely to get from a democrat administration. Any other Republican administration probably would have appointed him. He was already on the top shelf list and squeaky clean. The only credit Trump gets is signing the paper they put in front of him as far as I am concerned.

      People get into this cult like president worship or hatred as far as I am concerned. The president should not have so much power or get this much attention.

      I hear phrases like “the Trump (or Obama whoever) economy”. The president is not the economy. It is as if our whole lives revolve around the supreme leader of the moment. Is this what America was supposed to be?

      I have read that the US president has more power than the Chinese premier Xi and I believe it. Xi is more like the CEO. The secretive committees he must please can boot him out anytime. He does not have much legal power.

      I do follow Israel politics. The US president has more power than Netanyahu for sure. His cabinet is composed of parties who ran against him. Any one of them can pull out and call for re-elections no impeachment needed, which just happened.

  2. As progressives recognize in some situations, it’s “the little guy” who is most vulnerable to an executive branch that exceeds its constitutional authority.

    Which is why progressives are determined to control the executive by any means necessary, to ensure that the least powerful among us are the most powerful. The more victim-class boxes you can check, the more immune from criticism and questioning you become.

    And, fundamentally, “fairness” to progressives is equality of outcomes which requires Justice remove her blindfold and weigh each decision on a case-by-case basis. To a normal person, this is the height of injustice, to never know ahead of time what the law may require or what the courts may decide the law requires. General rules and principles are anathema to progressives, it prevents them from putting their thumb on the scales, it takes away their power to control.

    You’re never going to get a fair game out of one side who believes a fair game is one where the rules are the same for each side and the other side who believes a fair game is one where the rules are necessarily different for each side such that the weaker side is guaranteed a victory, thereby making the weaker side the stronger.

  3. From a Koch / Reason libertarian perspective, the most important civil liberty is the right of anyone on the planet to immigrate to the United States at any time and for any reason. Until Gorsuch writes an opinion declaring all border enforcement unconstitutional, I will never accept the assertion that he’s good on civil liberties.


    1. Open borders is insanity. In a perfect world, where persons wanting to immigrate would try to assimilate and be law abiding it MIGHT work. We do not live in a perfect world. To the contrary, we live across a roughly two thousand mile border from a failed State.

      1. Open borders is sanity. I crossed two open borders this year and it was a joy each time not to be hassled by annoying custom officials.

        1. And you totally settled there too.

          God, somtimes you’re so deeply fucking dumb that I wonder how you feed yourself.

        2. But without border security, who will fondle my testicles and look through my phone? It makes me feel like people care!

          1. Funny. I got picked for a pat down in an airport in Hawaii once. Seemed like the guy was getting kinda frisky so I said “you know, you have to pay extra for this back at the hotel” He was not amused.

    2. I thought super-precendent was the most important?

    3. Can’t have open borders if you’re a welfare state, unless you want to go broke. If there’s no dole I’ll accept open borders

  4. Is going to acknowledge the Daleiden/CMP verdict? Does have any thoughts on it’s implications for freedom of speech/1A?

    1. ps – yes it is O/T

      1. It is also the single largest assault on the First Amendment I can recall since McCain/Feingold.

        1. Is this what you mean?
          I see why you believe that, but I also see positives that I doubt any anti-abortion activist will admit. The judge told the jury that the First Amendment is not a defense because the case is entirely about trespass, property rights, and the sanctity of contracts. If any cop had trespassed and broken contracts the way the defendants did, people would be up in arms about the Fourth Amendment, unlawful takings, and who knows what else.

          The most obvious appeal might be the judge’s “connection” to Planned Parenthood, but that is never explained, so I suspect it’s pretty weak, otherwise they’d be playing it up.

          1. The judge also ordered the jury to declare a guilty verdict. The judge was also appointed to the board of an agency with heavy donations from planned parenthood. Social media also shows him and his wife as strong proponents of PP. He disallowed the videos to be played to the jury themselves. He still allowed damages even though PP refuted nothing that wss on the video, so the damages were over their own statements.

            It is one of the biggest judicial scandals in recent memory.

            1. Quit whining, clinger.

              Or not.

              You will continue to lose to, and comply with the preferences of, your betters either way.

              1. My betters can use punctuation properly.

              2. You’re just boring. At least Pod and baby Jeffrey try new ignorant arguments every now and then. You’re just a bore.

  5. Thou shalt not go against the church of abortion, even while performing journalism:

    “The jury has spoken loud and clear,” said Planned Parenthood attorney Rhonda Trotter after the verdict. “Those who violate the law in an effort to limit access to reproductive rights and health care will be held accountable .”

    1. Planned Parenthood needs to take the Gosnell case to heart, and to start finding and closing any operation run by similar ghouls. Maybe there aren’t any more, now that we have found the idiot who had a jarred fetus collection…but I’m Pro-Choice, and I don’t believe it. The Pro-Choice establishment is too goddamned smug, and sooner or later it will cost us. Gosnell already did, big time.

  6. “Among the folks that Trump had on his short list,” observes the Ohio State University law professor Douglas Berman, “Gorsuch seemed more defendant-friendly than most of the others,” and “that’s carried over to the Supreme Court.”

    How difficult was it to find a regular Federalist Society speaker to say nice things about a Federalist Society justice, Mr. Sullum?

      1. Open wider, clinger.

        Or not.

        Your failure to stop American progress, and obsequious compliance with the preferences of the liberal-libertarian mainstream, will continue either way.

        1. Um. You can’t even front an electable candidate lololol

  7. Twitter has a certain bias in its ban on ‘political’ ads:

    “Twitter Says Ban on Political Ads Excludes Those Related to Social Causes, Such as Gun Control and Abortion”

    Not political issues at all, right?

    1. Heh, funny stuff. Everyone laughed at their political ad ban, asked how they would draw the line, and now they have their answer — anyway they want, with the widest marker pen ever seen. They should redraw election district lines with that; no one would know what district they are in.

      1. Or hurricane storm tracking. Works there too.

    2. Quit whining, loser.

  8. AI is getting better, women and minorities hardest hit:

    “AI is learning everything from us. Our biases, too.”
    “…BERT and its peers are more likely to associate men with computer programming, for example, and generally don’t give women enough credit. One program decided almost everything written about President Trump was negative, even if the actual content was flattering…”

    We certainly do NOT want to admit most programmers are male, nor that most media coverage of Trump is negative!

  9. His work shows that an honest attempt to apply the “original public understanding” of constitutional provisions frequently yields libertarian results, limiting government power and protecting individual rights.

    As an American I say, “Thank God!” I can only hope we get more justices like him onto SCOTUS. I grew up with the belief the primary function of government, as the Founders understood it, was to protect my individual civil liberties. That was the sine qua non of why we even had a government.

    Over time, that changed somehow, and it has not been for the better. Justice Gorsuch is filling a much needed role: a bulwark against the government doing away with my individual civil liberties. I hope he continues with this.

    As a sidenote to Mr. Sullum: Nice job on the article. Informative and told me things I did not know before. So thank you for that.

  10. “Paul Krugman one year ago: Trump’s election has the markets plunging and they will probably never recover”

    Three years ago now, but it never gets tired.
    You can look it up:
    Yesterday, the Dow broke 28,000 and CA’s jobless rate is the lowest it has ever been measured.

    1. Krugman is a jackass. He’s been a jackass for years. Why anyone reads him bumfoozles me.

      1. Krugman is the modern progressive archetype: abandon any semblance of objectivity and reason, and use legacy authority to promote partisan propaganda. Like the NY times itself.

        1. Your post needs to be preserved for posterity.

    2. You’ll like this article about how krugman is always wrong. And when he explains how he was wrong it is because he is always right.

    3. Anyone who thinks the Drumpf economy is “good” hasn’t read enough Eric Boehm articles. Or Palin’s Buttplug comments. Or AOC’s explanation why a low unemployment rate is actually a bad thing.

      1. Palin had an awakening a few weeks back.

        1. No, somebody just stole his user name.

          As much as I love, I find it disappointing that the commenting system permits such troll-ish behavior.


          1. Nope, he had an awakening. Prove otherwise.

    4. Do you figure that, if everything improbably goes his way, Trump actually has a shot at beating Obama’s performance with respect to the stock market?

      1. LOL

        Anybody who has even basic familiarity with Sarah Palin’s Buttplug’s work would know that’s literally impossible.


    5. Pointing to the Dow like it means anything, particularly in the age of Trump, is pointless. It’s up today? Great! Record-breaking even? That’s pretty neat. And then Trump comes out tomorrow and confirms that no trade deal with China is forthcoming, and then the headlines will be all “greatest plunge since great recession” or whatnot. The point being that, unless you’re in Trump’s inner circle buying options based on what he’s planning to do next, these fluctuations and metrics have ceased to be very meaningful. They express, at best, a barometer of how the markets feel about Trump that day.

      Consumer confidence and employment continue to be high. That’s good. Wage growth is still not accelerating, which is surprising given employment levels. We’re seeing weakness in the manufacturing sector, while retail and services seem to be doing well.

      So the takeaway I have here is that Trump has spent a lot of money (in the form of tax cuts and ordinary federal spending) and pressured the Fed to use up its ammunition in order to counterbalance an inconsistent and unpredictable trade policy in order to more-or-less sustain a trajectory that extends all the way back to the Great Recession. Way to not fuck up, I guess? But just imagine how things might be going if it weren’t for Trump’s numerous self-pwns on trade. We might have been able to retain some of that tax revenue, even, from the TCJA.

      1. Always making up stories. This time about some future market event.

        Reality not emotionally satisfying enough for Dems, so it doesn’t matter to them.

        1. What story am I making up? I’m acknowledging the metrics as they are. There’s no concrete evidence that anything Trump has done is meaningfully contributing to continuing growth. It’s just his ass in the seat for the past three years.

          The metrics tell a confusing story about where we are and where we’re headed. Meanwhile, we’ve got a ton of debt we could have been paying down and a trade policy that is discouraging investment in the manufacturing sector. That’s all factual. Are you saying we’d be worse off if Trump hadn’t pulled out of TPP? If he hadn’t leveled tariffs at several trade partners and threatened many more? That more coal and steel plants would be closing than there are?

          1. Yes, decreasing overbearing regulations never has an effect on economic growth… you really are ignorant.

            1. You have a very inflated sense of how much Trump has done in the “deregulating” category.

              Anyway, three years of a “deregulatory agenda” and… the economy continues to grow as fast as it did during the Obama years, maybe slightly slower. So.

          2. The stock market crash this December is a made up story. Because the future has not occurred. No facts about that time are available.

            Market at all time highs is reality.

            I’m not interested in your parade of made up “what if” stories about TPP or WTF-ever. If any of those things had happened, you can put me down for then space aliens would have conquered the Earth because it’s more entertaining than whatever fantasy story you might invent.

            1. The stock market crash this December is a made up story. Because the future has not occurred. No facts about that time are available.

              What are you talking about? I’m not asserting a stock crash in December or at any other time. I’m just pointing out that we’ve been hearing about crashes and spikes for months now, much of it prompted by intimations made by Trump and his on-again, off-again trade deal with China. Even the most recent “deal” had this effect – first up, when it seemed like one was imminent, then down, when Trump said that he never agreed to lifting tariffs, now up again.

              I’m not interested in your parade of made up “what if” stories about TPP or WTF-ever.

              Right, you’re not interested in assessing Trump’s actual performance. You’re already convinced that he’s been awesome and are just looking for reasons why you’re right.

      2. My general take is whichever party is in power I never give them credit for good economic news. We do that. We get up and work our butts off, innovate, buy and sell. The government just gets in the way. The government can only screw things up worse than they are already so they get the blame when they do.

        Stock market same thing. It does fluctuate with the news and events of the day, political instability, war both shooting and trade, disasters, all impact in up or down cycles. Investors want stability and trade. When the government causes instability and disrupts trade the market reacts. The stock market rising on news of a potential trade deal just demonstrates that it is reacting to that news. It has been steadily going up because of you and I, despite Trump and all the other asshats.

  11. Progs are anti-liberty and their hyperbole always deserves to be ignored because they almost always are lying.

    1. Quit whining about losing the culture war, you half-educated bigot.

      1. That’s the 5th time you’ve whined about other people.

        You seem really upset.

        1. “The same principle, he argued, would also require the government to allow ‘any act of consensual homicide,’ including ‘sadomasochist killings, mass suicide pacts…duels, and the sale of one’s life (not to mention the use of now illicit drugs, prostitution, or the sale of one’s organs).’ If the government lets people kill themselves, in other words, it might also have to let them smoke pot.”

          You laugh, but that principle, applied consistently, would also allow people to sell themselves into slavery. (Or maybe that’s what Gorsuch meant to “the sale of one’s life.”)

          1. I’m not quite sure why this comment showed up here. I meant it to be at the top level, not a reply to the Rev.

            But speaking of the Rev., is that really him, or has somebody has stolen his name and started parodying him?

            1. This whole sock puppet and using different names thing is very confusing to me. I have not seen it anywhere else. Honestly I just don’t get it unless it is just because of some kind of pathology.

  12. I like Gorsuch because he’s smart and honest.

    1. He’s your opposite is what you’re saying.

  13. “If the government lets people kill themselves, in other words, it might also have to let them smoke pot.”

    Grotesque. Petty. I believe the kids say ‘A dick move.’

  14. More OT:
    “The great American tax haven: why the super-rich love South Dakota”

    Mostly because there’s a R majority in the state government and they’ve pretty much de-regulated themselves into wealth.
    And the Guardian is PISSED that people can keep money there without having to tithe ever goddam politician who walks by!

  15. It seems that, if facts don’t match your narrative, you’ll invent them as needed.

    I am very concerned by the number of authoritarian-leaning judges Trump has appointed to staff the lower courts, but when it comes to the SCOTUS itself I have been pleased by Gorsuch’s apparent independent-mindedness. As a matter of fact, I had been willing to give Kavanaugh the benefit of the doubt – he was on the shortlist of Republican picks for SCOTUS – at least until he clearly lied to the Senate and threw a goddamn tantrum over the possibility that he might not get his dream job, like his appointment was the most important thing that ever happened in this country.

    Personally, I am capable of observing Trump’s actions not through the rage-tinted glasses of the imagined critic, but incrementally as against a hypothetically more “mainstream” Republican president. Neither Gorsuch nor Kavanaugh are particularly surprising or troubling choices, from that perspective.

    Undermining American national security in order to smear a political opponent, though – that’s another matter.

    1. You’re like the complete opposite of me. I was very tepid on Kavanaugh up until the very-conveniently-timed political smear. Him getting pissed about someone essentially inventing charges against him because people hate Trump THAT MUCH is understandable.

      Since then, I’ve been reminded why I wasn’t so hot on Kavanaugh to begin with. Getting mad the witch-hunt political theater that was the CBF hearings is a complete non-issue.

      1. I didn’t like the CBF affair, either. I think it would appropriate, if you’re Kavanaugh, to be angered by that.

        But I expect Supreme Court justices to not break down in tears when they’re exposed to unfair criticism, and not to lie to Congress if they happened to party so long ago that it doesn’t matter now. If he had simply gone along with the ridiculous line of questioning, he would have still been confirmed, just the same. But instead he basically threatened the Democrats that they would regret their actions.

        Not SCOTUS material, as it turned out.

        1. “not to lie to Congress”… lol.

          Wow. You fucking believe everything Vox tells you.

          1. I believe that Kavanaugh partied in college and then lied about that background before the Senate. As do most of his supporters, I might add – “I like beer” being a common chant from around that time. They knew he was lying about that, too. They just didn’t care, because they felt the whole inquiry was illegitimate.

            1. I’ll bet you believe the Russkis stole the election, too.

    2. Can you name any authoritarian judges, SimonP?
      What judicial decisions lead you to think which judges are authoritarian?

      1. He can’t even stop making it obvious that he’s the Rev.

        1. Yes, clearly, there’s only one person in the world who would both oppose Trump and spend any time here on you losers.

          1. SimonP
            November.16.2019 at 3:22 pm
            “Yes, clearly, there’s only one person in the world who would both oppose Trump and spend any time here on you losers.”

            Plenty of fucking lefty ignoramuses show up here, you among them.
            Make the world a better and more intelligent place: Fuck off and die where you won’t stink up the place.

            1. I’m not the one accusing everyone of being a sockpuppet for a particularly prolific troll.

      2. The most recent and clearest example I can think of is Neomi Rao, now confirmed to the D.C. Circuit.

        She was part of the panel that heard the case winding its way through the courts, where the House is seeking to get financial information about Trump from his accounting firm. While the panel held in favor of the House, Rao wrote a dissent that could have been from the WH Counsel’s office, asserting that the House had no authority to seek the documents except as part of an impeachment proceeding, because Congress’s general authority to conduct investigations relates only to its legislative power; it could not duplicate the “law enforcement” function of the executive branch by engaging in “criminal investigations.” The same argument has been floated by the WH in order to block the release of the president’s tax returns to Congress, despite the clear meaning of the applicable statutes.

        This is an authoritarian-serving position because it limits the scope of congressional authority and arrogates the president (and the judiciary) the power to unilaterally declare areas of inquiry off-limits. “No legitimate legislative purpose,” according to whom? Well, the president, if Rao et al. get their way.

        1. “This is an authoritarian-serving position because it limits the scope of congressional authority”

          Do you know what else limits the scope of the congressional authority? THE FUCKING CONSTITUTION YOU RETARDED FUCK.

          Please, just keep showing you don’t understand a thing about the government at all. Please keep showing you don’t understand the laws Congress itself put around the release of private information such as tax forms.

          You’re dumber than even Pod.

          1. Nothing in the Constitution constrains congressional authority to subpoena information to just “legislative functions,” and nothing in the relevant statutes permits the president to ignore a clear mandate because he deems a congressional request for his tax returns as not serving a “legislative purpose.”

            But use more capslock, it might make your assertions more convincing.

            1. And nothing in the Constitution grants Congress subpoena power either….

              Instead, it’s implicit in the power to draft legislation to gain information necessary to the effects of legislation, and implicit in the power to impeach to gain information necessary to determine if an impeachment is appropriate.

              The House seems to think so as well, since every House in at least the last few decades started the term by voting in rules about how to issue subpoenas under their legislative power, including this one.

              The Presidents argument is that, like every prior impeachment, for the House to have compulsive power to gain information for impeachment they need to grant themselves that power, and they haven’t done so. It could be as simple as “Any member of this House may issue compulsory subpoenas to any entity for the purpose of impeachment determinations. These order will be enforced by the Master at Arms.”

        2. While the panel held in favor of the House, Rao wrote a dissent that could have been from the WH Counsel’s office, asserting that the House had no authority to seek the documents except as part of an impeachment proceeding, because Congress’s general authority to conduct investigations relates only to its legislative power; it could not duplicate the “law enforcement” function of the executive branch by engaging in “criminal investigations.”

          Really, that is what she wrote? I don’t think so. But let’s assume you’re 100% correct. Where then, is this authoritarian bent that concerns you? Not being facetious, but wondering what you’re seeing.

  16. Most effectively libertarian administration in 20+ years, if not 80 or 90 years.

    Too bad Reason and other libertarian pundits only know how to be negative.

    1. Concur Ben….although the profligate spending does not please me. We have got to get spending under control and get the debt down to less than 5% of GDP. Our national debt is a drag on growth. Money for debt service is money not being used in the private economy.

      1. Won’t happen. That bomb has to explode before voters will admit it exists at all.

        Even deficit hawks won’t agree to lower spending on things they like. And there aren’t many deficit hawks.

  17. Trump’s first Supreme Court pick is better on civil liberties than his critics want to admit.

    He’s taking a hard line on the 3rd Amendment.

  18. This just shows that when it comes to the PC police truth does not compute if the object of their attention does not meet their PC guideline.

  19. Viewed in a more balanced manner, Gorsuch’s nomination should be seen as a redeeming feature of the Trump administration on the left as well as on the right.

    Reason can’t get over their rose-colored Mid-20th Century view of “the left”.

    1. Some of the left’s writings on gorsuch:

      And due to Reason’s one link rule:

      Neil Gorsuch Just Demolished Labor Rights
      His decision, a frontal attack on the New Deal, effectively legalizes wage theft.

      Which Supreme Court Justice Hates Neil Gorsuch The Most?

      How Badly Is Neil Gorsuch Annoying the Other Supreme Court Justices?

      Justice Gorsuch is wrong — ‘originalist’ judges make stuff up too

      Neil Gorsuch Is The Anti-LGBTQ Nightmare His Gay Friends Hoped He Wasn’t

      Left won’t care one wit about Gorsuch or see him as a redeeming feature.

      1. Well he has good hair and that strong jawline. Reminds me of a cleanly shaven Brett Favre. I think they could agree with that.

      2. “Neil Gorsuch Is The Anti-LGBTQ Nightmare His Gay Friends Hoped He Wasn’t”

        That one’s my favorite

  20. I had to like Gorsuch when in the hearings Cruz asked him “ What is the answer to the question of life, the universe and everything?” And he gave the correct answer.

    Seems like he gets all the attention now. What about the other judges? They are going to need to rename the court “Neil Gorsuch & The Supremes”.

    I love how we libertarians cling to anything or anyone who even remotely resembles things libertarian. More libertarian than something else but it isn’t. It is like saying “lasagne is more like pizza than tacos” or that tomato casserole they eat in Chicago which isn’t pizza either.

    We had that taco truck article little while back and I looked up their menu. They had a “chicken and waffles taco” honestly they did. I like chicken & waffles, and tacos but cmon even a libertarian has to have his standards.

    1. “More libertarian than something else but it isn’t.”

      Libertarian isn’t a single state of existence it is a preference or tendency towards an ideal. The real world is largely contingent, better than is indeed a proper consideration.

      There is nothing libertarian that makes the perfect the enemy of the good.

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