Free Minds & Free Markets

Gorsuch Is More Liberal Than Garland

For civil libertarians, the newest Supreme Court justice is better than the nominee who never got a hearing.

Democrats are understandably bitter about the Republican intransigence that ultimately allowed Neil Gorsuch to take a seat on the U.S. Supreme Court this week. But for Democrats who care about civil liberties, Gorsuch is a better choice than Merrick Garland, the nominee Republican senators refused to consider after he was nominated by President Obama last year.

Garland, who has served on the U.S. Court of Appeals for the D.C. Circuit since 1997, was frequently described as a "moderate" after Obama picked him to replace Justice Antonin Scalia, who died in February 2016. Garland earned that label mainly by siding with the government, sometimes in cases where conservatives liked the result and sometimes in cases where liberals did.

Despite his reputation on the left as an authoritarian, Scalia defended the rights of the accused more consistently than some of his purportedly more liberal colleagues. And as SCOTUSBlog publisher Tom Goldstein noted, Garland is "to the right of Scalia on criminal justice issues."

Gorsuch, who served for a decade on the U.S. Court of Appeals for the 10th Circuit, seems closer to Scalia in this area. Like Scalia, he is a critic of vague criminal statutes and a stickler when it comes to requiring that prosecutors prove all the elements of an offense.

Both tendencies were apparent in a 2015 case involving merchants charged with violating the Controlled Substance Analogue Enforcement Act by selling "incense" containing a synthetic cannabinoid. Even without delving into the "vagueness concerns" raised by the Analogue Act, Gorsuch said, it was clear the defendants had been improperly convicted because the jury instructions "effectively relieve[d] the government of proving each essential element specified by Congress."

Gorsuch's concern about the proper application of criminal statutes was also apparent when he dissented from a 2016 decision in which 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. According to the New Mexico Court of Appeals, Gorsuch pointed out, the law under which the boy 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."

Another 2016 dissent shows that Gorsuch shares Scalia's respect for the zone of privacy protected by the Fourth Amendment. When the 10th Circuit said it was constitutional for police to ignore multiple "No Trespassing" signs on the property of a suspected drug dealer, Gorsuch criticized his colleagues for endorsing "an irrevocable right to enter a home's curtilage to conduct a knock and talk."

Although progressives may be willing to concede that Gorsuch is preferable to Garland on criminal justice, they tend to view another contrast between the two judges with alarm. Gorsuch is more inclined than Garland (or Scalia) to question the authority of administrative agencies.

While Goldstein found that Garland has "strong views favoring deference to agency decisionmakers," Gorsuch is a prominent critic of the Chevron doctrine, which gives agencies wide authority to resolve ambiguities in the laws they are charged with enforcing. Gorsuch sees excessive deference to executive-branch agencies as a threat to the separation of powers.

It is also a threat to individual freedom. Giving one agency the power to interpret and rewrite the law as well as enforce it poses a clear threat to people at the agency's mercy, including the obscure and vulnerable as well as the rich and powerful—a point that progressives who view Chevron as an essential bulwark of the regulatory state have trouble recognizing.

Prior to Gorsuch's confirmation, People for the American Way cited a 2016 decision as evidence that he would undermine the ability of regulators to "enforce critical laws, safeguard essential protections, and ensure the safety of the American people." The group neglected to mention that Gorsuch's opinion sided with an unauthorized immigrant fighting to remain in the United States.

© Copyright 2017 by Creators Syndicate Inc.

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  • Memory Hole||

    He's seems like a nice guy personality wise and not one of those hangem high types that you sometimes find among republican judges.

  • Conchfritters||

    Or republican attorney generals.

  • Curtisls701||

    Ah, but is he the very model of a modern major general?

  • 0x90||

    Attorneys in general are not attorneys general, but attorneys general are generally attorneys. General.

  • khm001||

    It's always cute to see the thoughtless, such as you, pretend they are thoughtful.

  • Alan Vanneman||

    "Scalia defended the rights of the accused more consistently than some of his purportedly more liberal colleagues."

    That was sometimes true, but let's throw in some pretty heavy caveats. As all Reason readers know, Scalia was a passionate foe of drug use (except when the Chief Justice was the user) and stretched the Constitution aggressively to fit any and all federal anti-drug laws. Furthermore, in the Texas sodomy case, he explicitly asserted the right of states to criminalize any "sin", including masturbation, as long, I guess, as the definition wasn't "vague". No knock enforcement of anti-jack-off laws? Why not? Post 9/11, Scalia was a reliable vote for Big Brother. Scalia also voted to uphold previous Court decisions approving civil forfeiture. And, lest we forget, Bush v. Gore. Putting on a robe has never made anyone "wise".

  • Zeb||

    He also had far to much faith in "police professionalism" being sufficient to protect procedural rights.

  • ||

    Furthermore, in the Texas sodomy case, he explicitly asserted the right of states to criminalize any "sin", including masturbation, as long, I guess, as the definition wasn't "vague". No knock enforcement of anti-jack-off laws? Why not?

    At some point, when you build a straw man, hang someone's name from it, and proceed to pummel, deface, and defile it, your actions pass from harmless, to insulting, to disturbing.

    The laws Scalia defended were in place for decades, no-knock anti-jack off raids never took place, but let's pretend they did so we can demonize him, right? Moreover, the things that Scalia explicitly laid out in his dissent as enabling oppressive legalizing and unconstitutional legislating came to and are coming to fruition. He didn't assert the rights of states to criminalize sin. He explicitly stated that there is no constitutionally guaranteed right to sin (or, more accurately, not constitutionally guaranteed right to gay sodomy) and even if there is, it doesn't supersede, one's right to be secure in their belongings or speak freely as plainly written into the constitution.

    I'm not going to join with Reason pretend that Scalia was a patron saint of individual liberty, but I'm also not going to act like he had a raging boner to throw homosexuals in jail just because he favored following the letter of the law and federalism over explicitly whimsical rose-tinted contortions of equal protection.

  • Redcard||

    I'm also not going to act like he had a raging boner to throw homosexuals in jail just because he favored following the letter of the law and federalism over explicitly whimsical rose-tinted contortions of equal protection

    Good because you suck at it. You are not acting like it, you are denying facts

  • This Machine Chips Fascists||

    I hope Scalia's moralistic egomaniacal soul didn't let the screen door hit it on the way out. Twisting reason to get what he wanted was his ugly specialty.

    It won't be difficult for Gorsuch to do 100% better. Time will tell.

  • khm001||

    Furthermore, in the Texas sodomy case, he explicitly asserted the right of states to criminalize any "sin"

    You do understand, don't you, states DO have this right, per the tenth amendment. Then your comment devolves into nonsense; well, furhter into nonsense.

  • C. S. P. Schofield||

    Maybe I'm just sensitized to this right now for reasons having nothing to do with REASON, but it seems to me that I am seeing an awful lot of articles recently that talk abut Liberal/Left attitudes as if the Left actually acted according the the beliefs they ostensibly espouse.

    This is a case in point.

    The Left doesn't want the law clearly explained and fairly enforced. By their actual behavior over the decades, we can clearly deduce that the Left wants murkily unclear law enforced according to the ever shifting prejudices of a Political and Intellectual elite (of the Political Left, naturally).

    Naturally they hate and fear Judges like Grouch.

  • Zeb||

    I think the bigger mistake is to talk about "the left" as if they share one mind on all of these issues. There are still some left leaning civil libertarians out there.

    And I really think it has a more to do with two simple things: he was appointed by a Republican and abortion

  • chemjeff||

    Oh no no no. "The Left" is a monolith hive mind of a singular purpose, which is defined by whatever its most radical elements believe. Everybody knows that.

    You see - libertarians, conservatives, anarchists, moderates, they are all each separate individuals with distinct opinions. But no such courtesy is to be extended to "The Left". They are the enemy who must be defeated at all costs, even if it means voting for Trump you see.

  • chemjeff||

    As a tangentially related aside, I always find it amusing when those Trumpists who yell the loudest about "nationalism" and "putting America first" are almost invariably the first ones to accuse those Americans, who happen to be leftists, of being just short of traitors.

  • Diane Reynolds (Paul.)||

    We sure seem to know what The Right believes though, amirite? Amirite?

  • SIV||

    Bad stuff. Hitler-bad.

  • Philadelphia Collins||

    I believe the Unborn are ok with this.

  • Zeb||

    I think it's unlikely that they have an opinion on the Supreme Court confirmation process at all.

  • MarkLastname||

    I think there is, rather, a particular school of heuristic thought that believes laws are inevitably ambiguous, and so ambiguity should be embraced and used to promote a political agenda (legal realism being the school). Usually those who espouse it are on the left, and believe in using the law to promote 'social justice' and help the 'oppressed classes.'

  • Diane Reynolds (Paul.)||

    The ambiguous law is far more powerful than the one with clear, bright lines and precise language.

  • Azathoth!!||

    I think the biggest mistake is to talk about "the left" as if even though they all ascribe to self proclaimed leftist ideals, we must pretend that their opinions are so varied that they include specifically anti-leftist ideas--just because we're supposed to be purists when it comes to individualism.

    There are no 'left-leaning civil libertarians'. Why? Because leftist concepts specifically exclude the individual rights and responsibilities that are codified under the term 'civil liberty'.

    You can't walk the path that's diametrically opposed to liberty and claim any love for it.


    Just drop the 'left' thing and you'll be good to go.

  • Zeb||

    Oh, well, if you say so, then it must be true.

  • Longtobefree||

    "There are still some left leaning civil libertarians out there."
    They can be identified easily, because their brains have exploded trying to remain "left" while being a civil libertarian.

  • Number 2||

    "Democrats are understandably bitter about the Republican intransigence ...."

    Really, Jacob?

    The Democrats were incredibly stupid. By going to the mat and filibustering a respected conservative jurist who's appointment merely maintained the 5–4 conservative majority that had already been in existence, (a conservative majority, by the way, that twice upheld Obamacare, overturned Section 3 of DOMA and deemed same sex marriage to be constitutionally protected), they gave the Republicans the political cover they needed to invoke the nuclear option without a public backlash. Do you think that the public at large gave two shits about a Supreme Court nomination being "stolen" from Obama?

    Had the Democrats waited until a nomination that would have changed the balance of the court, or until Trump named a clunker of a nominee, the Democrats could have portrayed the filibuster as a matter of principle rather than as a political temper tantrum. They could then have generated far greater public opposition to the nuclear option in those circumstances. But now they are virtually powerless to prevent any future Trump nominee from passing. They gave the game away for nothing.

  • Mark22||

    The Democrats are vying for the title of "the party of stupid".

  • SIV||

    Now if only the Republicans could get the hang of "the party of evil"

  • loveconstitution1789||

    I think the Democrats getting Republicans to get rid of the filibuster for Supreme Court nominees was a strategy of the Nanny-State party. In the long run it will help get more government cronies into appointed positions easier with just a simple majority.

    A redeeming action the Republicans could do is at the end of Trump's 2nd term as President, use the majority in the Senate to reinstate the filibuster for all appointments and require a 100 Senator vote to change the rules.

  • Number 2||

    Clever idea.

  • Longtobefree||

    How many votes to change the 100 vote rule?

  • FrederickMichael||

    There is a good chance that the Republican party will have the majority in the Senate for a long time. Most states are "red" and, since each state gets two Senators, the Republicans have a natural advantage. This is sometimes described as, "The Senate is gerrymandered Republican."

    Before all 60 Democrats voted for Obamacare, many red states elected moderate Democrats. That may be changing.

    The 2018 election will be a barometer. Nine Democrats have to defend seats in states won by Trump. If the Democrats can manage to only lose a seat or two, then retaking the Senate is still a reasonable short term goal. Lose, say, five or more and the numbers force them to look many election cycles ahead.

    Remember 2010 was a big shift and 2016 was the chance to recover, but they only gained 3 seats.

  • Zeb||

    You are correct in everything you say there.

    But that doesn't make it not understandable. "Understandable" doesn't mean their subsequent actions are smart or reasonable. Or even that the bitterness was justified.

  • GILMORE™||

    doesn't make it not

    everyone listen to the super-big grammar expert logic dude

  • Zeb||

    Actually, more of a words-have-meanings dude.

    And check out Mr. acting like a douche for no good reason, here.

  • GILMORE™||

    no good reason

    I apologize. i had no intention of undermining your own pedantic nitpicking of other people's points. please continue.

  • chemjeff||

    That's right, Zeb. You can't give those wily Democrats even an inch. You must FIGHT FIGHT FIGHT and never give up because the real purpose of Reason should be as another front in the WAR AGAINST THE LEFT

  • GILMORE™||

    where here am i saying anything about democrats, jeff? projecting a little?

  • Zeb||

    Well, excuse me for commenting on the meaning of words in response to a post criticizing word choices by the author.

  • GILMORE™||

    bless you

  • Zeb||

    And you. Have a pleasant afternoon.

  • PersephoneK||

    I think this was a bland olive branch to maybe get some progressives to read the article. Move past it.

  • GILMORE™||

    maybe get some progressives to read the article

    truly, a brilliantly-conceived libertarian growth strategy

  • khm001||

    "Democrats are understandably bitter about the Republican intransigence"

    Not only should republicans be intransigent towards democrats, they have a duty to be so on nearly all issues. That's why they are a different, and opposition, party. That Jacob pretends otherwise shows his childish view of politics.

  • Mark22||

    Gorsuch Is More Liberal Than Garland For civil libertarians

    I'm sorry, Reason, but in modern US usage, "liberal" means "progressive", i.e., "opposed to civil liberties".

  • Zeb||

    Yeah, but I find his effort to reclaim and rehabilitate the word admirable.

  • Mark22||

    Reason isn't reclaiming the word; that would require making it clear that the word has been stolen and its meaning corrupted.

  • Zeb||

    So, what? You think he just doesn't know that the word isn't usually used in the sense he intends?

  • Mark22||

    I have no idea what Sullum knows or doesn't know. What I do know is that he is doing a piss-poor job at getting across libertarian values and ideas.

  • Longtobefree||

    Decimated, not corrupted. :-)

  • TheZenomeProject||

    Unless you're Dave Rubin, of course. But that's a tiny fraction of the left.

  • LarryWilson||

    These elections aren't really about ideology anyway.

    They are merely branding rights.

    In the grand scheme, it doesn't matter if the Patriots or the Falcons with the Super Bowl...but New England fans will still strut around like it did matter.

    Same with republicans and democrats.

  • Citizen X - #6||

    Principals over principles, forever and ever, amen.

  • GILMORE™||

    Democrats who care about civil liberties

    tell me more of this rare and elusive species

  • Agile Cyborg||

    Judges emblazoned with effulgent streaks of individualism are thought to be exceedingly rare. And they are.

    Minor gods and goddesses shuffling bored feet under maple edifices home to gavel and lofty elbow circumvent the harshness of street commonality on lofty repose fashioned by a mechanic supremacy- wicked, primal, and morally festooned.

    Judicial precipices lined with an emanating and leering coldness where monolithic standards are unleashed onto the quivering and legislated whims forge whistling societal canyons harrowed and square-edged against the fertile soil of mass surrender.

  • creech||

    But I'm told Gorsuch is an extreme right winger, according to those who want me to write Sen. Toomey and castigate him for voting for Gorsuch's appointment. Is everyone to the right of Sen. Warren now an extreme right winger??

  • GILMORE™||

    Our long-awaited nightmare is finally coming to life =

    Trump Will Torch The Supreme Court

    To the extent that Trump has a vision for the GOP, it is along the lines of Europe-style workers' parties (his term) such as France's National Front. This is an authoritarian, nationalistic, right-wing party whose main goal is to aggressively realign the economy around the interest of domestic workers by fanning the fires of xenophobia and protectionism. George Mason University's Ilya Somin points out that such a party will have no use for federalism, separation of powers, and individual rights. To the contrary, such commitments are likely to be an impediment to its goals.... [which] are likely to include sweeping executive powers, a narrow view of freedom of speech, and tight restrictions on civil liberties

    Voting for Trump out of concern for the Supreme Court like handing the keys of your church to an arsonist clutching a can of gasoline in one hand and matches in the other—and hoping that somehow he'd spare the inner sanctum and the holy book. He won't.

    The tragedy is that by the time Trump burns it all down, the GOP might well be past the point of caring.

    its that sort of prescient, refreshing, non-partisan analysis that we've come to expect

  • Zeb||

    From Dalmia, yeah, pretty much.

  • Redcard||

    Gorsuch is a Thomas in Roberts' clothing. He is not liberal at all, but he is a definite improvement over his predecessor

  • Rebel Scum||

    Although progressives may be willing to concede that Gorsuch is preferable to Garland on criminal justice, they tend to view another contrast between the two judges with alarm.

    You mistakenly believe that regressives have principles, or that they want "justice".

  • TheZenomeProject||

    They want "social justice", which is an oxymoron that is the definition of anti-justice.

  • FD||

    "Democrats are understandably bitter about the Republican intransigence that ultimately allowed Neil Gorsuch to take a seat on the U.S. Supreme Court this week. "

    It's only "understandable" if they're hypocritical, cognitively dissonant, intellectual midgets. Oh, maybe that's what your'e saying.
    Live by the sword, die by the sword.


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