Reason.com

Free Minds & Free Markets

Another Justice Like Gorsuch, Please

Contrary to what his critics say, this "narrow-minded elitist" stands up for the little guy.

"We have to STOP the next Trump nominee!" says a pop-up solicitation on People for the American Way's website. Before you rush to "donate now," you might want to consider the organization's assessment of Trump's last Supreme Court nominee.

"Far from being a fair-minded constitutionalist," PFAW says, Neil Gorsuch "has proven to be a narrow-minded elitist who consistently votes in favor of corporations and the powerful." The gap between that description and Gorsuch's actual performance on the Court speaks volumes about the blind partisanship of Trump critics who care more about scoring political points than defending civil liberties.

PFAW is echoing the criticism of Democratic senators who worried, before Gorsuch was confirmed in April 2017, that he was not inclined to stand up for "the little guy." Gorsuch's record during a decade on the U.S. Court of Appeals for the 10th Circuit belied that claim, and his 15 months on the Supreme Court provide further evidence that he is not shy about defending the principles that protect politically disfavored individuals from the whims of the powerful.

In sharp contrast with the man who nominated him, Gorsuch worries about abuses of the government's power to take people's property "for public use." In June 2017, when the Court declined to hear a case that raised the question of whether a state can impose limits on the "just compensation" it owes for takings under the Fifth Amendment, Gorsuch, joined by Clarence Thomas, urged his colleagues to address that issue at the "next opportunity."

That pairing was notable because Gorsuch is on record as admiring Thomas's passionate dissent from the widely condemned 2005 decision in which the Court approved the use of eminent domain to transfer property from one private owner to another in the name of economic development. Big businesses routinely use such arrangements to override the wishes of little people who get in the way of their plans.

On the same day that Thomas joined Gorsuch in calling for closer scrutiny of eminent domain, Gorsuch joined Thomas in dissenting from the Court's refusal to hear a case challenging California's requirement that people who want to carry guns for self-defense persuade local police officials that they have "good cause" to do so. Such discretionary carry permit policies favor the rich, famous, and well-connected while preventing ordinary people from exercising the right to bear arms.

Although PFAW never would admit it, Gorsuch also was standing up for the little guy when he sided with the state employee in Illinois who did not want to subsidize the advocacy of a union he never joined, the California crisis pregnancy centers that did not want to provide information about abortion services, and the Colorado baker who did not want to supply a cake for a gay wedding. In all three cases, the state was using force to impose a majority's views on a recalcitrant minority.

PFAW does not sympathize with those plaintiffs. But what about the immigrants who can continue to live in this country thanks to the April 2018 decision in which the Court concluded that a law requiring deportation of people who commit "aggravated felonies" was unconstitutionally vague? Gorsuch joined the left side of the Court in that decision, noting that "vague laws invite arbitrary power."

Although Gorsuch did not join last month's ruling against warrantless examination of cellphone location records, his dissent went further than the majority opinion in questioning the misbegotten third-party doctrine, which holds that the Fourth Amendment provides no protection for information you share with other people. In an age when "even our most private documents…reside on third party servers," Gorsuch asked, "what is left of the Fourth Amendment?"

While I don't always agree with Gorsuch, it is clear by now that he is far from a knee-jerk authoritarian or slavish defender of moneyed interests. Anyone who portrays him that way has no credibility in commenting on the president's next choice for the Court.

© Copyright 2018 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • vek||

    Progtard: But he's a *GASP*... CONSERVATIVE! That probably makes him even more LITERALLY HITLER than Trump himself!

  • Salmonsnail||

    He's not a conservative. Conservatives are reactionary racists and bigots. Conservatives love war and the military industrial complex. They have no loyalty to our country and would see Putin rewarded and encouraged for his assault on our elections and the truth. They favor punishing political opponents with high taxes. They lavish welfare on big business and raise taxes on poor people. They build prisons and vote down mental health facilities. They pollute and poison the environmentm Above all else a conservative is liar. Delusional to the core. Many are wedded to an ancient copper age religous death cult. I could go on.

  • Nardz||

    Why so salty, snail?

  • Rock Lobster||

    That's quite a escargot he's hauling around, no?

  • BearChick||

    Sounds like neoconservatives, not conservatives. Neocons are not conservatives...though there may not be too many true conservatives around these days, just like liberals are not really liberal...they're illiberal.

  • FlameCCT||

    Neocons aka RINOs aka Progressive Republicans.

  • vek||

    Uhhh, wut?

    I mean a few of those describe some sub-sets of people who consider themselves conservative... But for the most part that just sounds like leftist ranting.

  • Muzzled Woodchipper||

    Because it is.

  • posmoo||

    Sounds like HRC.

  • Rock Lobster||

    To a prog, you are essentially describing anyone who is not a prog.

    And conservative is a euphemism for "NAZI!"

  • Sevo||

    "They have no loyalty to our country and would see Putin rewarded and encouraged for his assault on our elections and the truth."

    Your tin-foil hat's on inside out, you idiot.

  • Tony||

    He's probably one of those. Like all conservatives he's dumb as a fucking box of dumb.

  • Sevo||

    Gee, and he's spouting the same bullshit you do.

  • Earth Skeptic||

    Sock

  • Last of the Shitlords||

    Tony, kill yourself.

  • Last of the Shitlords||

    Wow Salmon, that sounds like a lot of proggie traitor talk. If you're serious, you really are a lowlife piece of shit.

  • Vincent Milburn||

    Is Trump really Hitler?

    Or is Hitler Trump?

  • Scarecrow Repair & Chippering||

    "To stand up for the little guy" is proggie-speak for controlling people's lives because they are too stupid, ignorant, naive, or powerless to run their own lives. Individualists understand self-ownership and start from the opposite assumption, that people are capable of taking care of themselves, that society self-organizes around that, that people know best how to run their own lives, and that people do help each other on a person-to-person basis when needed.

  • Bubba Jones||

    This is key. Standing up for the little guy means making decisions for their own good.

  • FlameCCT||

    Government controlled Progressive Plantations (Marxist Utopias) with Elitist Masters and Uncle Tom Overseers controlling the Proletariat Serfs.

  • hello.||

    It's always fun when this demented old piece of shit can't even contextualize the post he's replying to and pick the right copy from his repertoire. Might be time to up the dosage old man.

  • John C. Randolph||

    a narrow-minded elitist who consistently votes in favor of corporations and the powerful.

    I would apply that description to any of those fucking shysters who voted the wrong way on Kelo.

    -jcr

  • Sylvie1||

    And you'd be right to do so. Duh, Progressives don't know what words mean.

  • Saurocet||

    "...speaks volumes about the blind partisanship of Trump critics who care more about scoring political points than defending civil liberties."

    You mean sort of like cable news networks that would rather report on a few families separated at the border by court order rather than the corruption that is rampant on capitol hill with Imran Awan and Debbie Wasserman Schultz?

  • gaoxiaen||

    So far, so good.

  • libertynugget||

    I'm pretty much just bracing for the sh*t storm coming but hope for a constitutionalist.
    Hopefully someone who has never said the words concerning the Constitution as "a living document" or "constantly evolving"

  • Lester224||

    Hmm.. It has to be a "living document" or else we'd still only have white, male land owners allowed to vote.

  • vek||

    Hihn is right for once! The proper way to change it is not to ignore the plain intent as written, but to muster enough public support to amend it. Anything else is breaking the rule of law, and that does not usually end well...

  • The Last American Hero||

    Until the 1939 convention, when the country would have gone full on socialist, and there is no turning back.

  • posmoo||

    "In sharp contrast with the man who nominated him, Gorsuch worries about abuses of the government's power to take people's property "for public use."'

    That tiny and entirely irrelevant virue signal won't save your invite to cocktails, Jacob. You might as well leave it out altogether.

  • Entropy Drehmaschine Void||

    Way to light the Tony Signal, Jake.

  • Rock Lobster||

    People
    For the
    Alinsky
    Way

    Happy anti-4th of July, and welcome to the prog picnic!

    Pass the pulled Bork, please.

  • Qsl||

    So I am curious by what means they intend to stop the next Trump nomination? Assassination? Develop time travel technology to alter the timeline? Raise a conquering army? Buy the best darned Hallmark card available and ask pretty-please?

    Might I be so bold to suggest that much of the furor over Trump is nothing more than a cynical attempt to separate the rubes from their money? I mean hey, that's a lot of pussy hats that need to be made. Might as well make a little on the side.

    Election is over folks. The "resistance" against Trump isn't even as well conceived as Occupy, and you know how well that turned out. Maybe try and court some independents next time around instead of weaponizing your base.

  • Rev. Arthur L. Kirkland||

    I see little point to trying to stop the next Trump nomination (distinguished from customary review).

    Instead, I believe the liberal-libertarian alliance should focus on electing a Democratic Congress that, coupled with a Democratic president, could enlarge the Supreme Court and relegate Trump nominees to the production of indignant, stale-thinking, intolerant dissents.

  • loveconstitution1789||

    Never going to happen. Democrats will never win a House, Senate, and Presidential trifecta again.

  • Qsl||

    While I tend to be a fan of that type of forward thinking and expanding the enterprise of government to a multitude of voices, the thinking libertarian has to wonder why stop there? Why not create a third branch of congress specifically to oversee the other two and have it filled by allotment? Or you could move even further and declare each and every citizen a member of congress and do away with those pesky elections altogether.

    But alas, the current state of liberals leads even the moderate libertarians to think "man, they really need to get their shit together" (see the Occupy allusion), which unless libertarians have something to be gained from such an alliance, that seems awfully premature.

  • Sevo||

    "...I believe the liberal-libertarian alliance..."

    Which is exactly the reason you're recognized as the annoying asshole you are.
    No
    Such
    Thing.
    Liberals HATE libertarians since libertarians ARE liberals and call the proggies on their constant bullshit.

  • Hattori Hanzo||

    There's a handful of Republicans that I would consider voting for if I lived in their state or district. There isn't a Democrat, anywhere, that I would vote for under any circumstances. There is no alliance. There is no hope with Democrats.

  • Brian||

    We can talk as soon as Democrats embrace at least 1/2A

  • BillyG||

    Translation: You want to court stack SCOTUS. So how does that play out in the long run? 121 people on the supreme court?

    Carry on Tyrant.

  • Last of the Shitlords||

    Arty, we're going to have already enlarged it. 10-3 for decades.

    Learn to obey your conservative and libertarian betters for the rest of your seditious life you, stupid bitch.

  • Bubba Jones||

    There is no liberal libertarian alliance.

    There are a couple places where liberals don't completely disagree with a subset of libertarians. Open borders abortions.

  • vek||

    Since there is no such thing as a libertarian society on earth, or anything close to it, it can be argued in a true libertarian society that there are valid arguments against both of those points. Namely when life begins, and when that person in a tummy gets their rights. And crossing private property lines to get to where one is actually welcome.

    Neither of those are cut and dried even in libertopia, let alone the real world as it exists with socialized costs, and effectively all citizens of the USA being joint sovereigns over all the land in the country...

    If you recall I am fine with abortion, but not so keen on open borders. I'm just sayin' those aren't 100% cut and dry libertarian positions.

  • The Last American Hero||

    No, he won't be in jail, and if Team Blue can't get its shit together, he'll get four more years.

  • loveconstitution1789||

    Gorsuch has always voted on the court to limit government power.

    Even in his dissent in the Cell phone case Carpenter, Gorsuch advocates using property rights to protect ones 3rd party records rather than create a complex and incomplete privacy doctrine.

  • Tony||

    Almost like some Federalist Society assembly line man-cookie.

  • Brian||

    Someone's butthurt about SCOTUS.

  • Tony||

    It's not just a game of checkers to us normal people. Its your livelihood I'm trying to protect too.

  • Sevo||

    Tony|7.4.18 @ 2:28PM|#
    "It's not just a game of checkers to us normal people."

    Idiots like you do not have any idea what 'normal people' think; you're still whining that the miserable hag lost.
    Fuck off.

  • Tony||

    Sevo, spokesman for normality.

  • Last of the Shitlords||

    Hey fake Hihn, how goes it?

  • VinniUSMC||

    Ok Sally.

  • Brian||

    It's like you're a hero, really.

  • FlameCCT||

    Hate to break it to you Tony but you haven't been normal for a very long time!

  • Tony||

    And who the fuck might you be?

  • Last of the Shitlords||

    No, Tony likes a lot of anal attention.

  • Wrath0fKahn||

    If Trump gives us another justice like Gorsuch he would be dangerously close to having my undying gratitude.

  • Earth Skeptic||

    Feel the Douche.

  • Last of the Shitlords||

    Are you playing pretend Hihn again?

  • Quo Usque Tandem||

    Posting at 1:41AM...you are like a perpetual pinata to this crowd. As such you seem to serve a useful purpose, as a virtual punching bag.

  • Bob Meyer||

    Putting Gorsuch on the court was just one of Trump's random actions. He had no idea of who Gorsuch was, nor any idea of what Judicial Restraint is, nor any logical thoughts at all. Trump is the Magic 8-Ball of politics. On any question just spin him around a bit and wait for the canned answer to pop up.

    "Should I nominate Neil Gorsuch?" spin around for a couple of days and "Signs point to yes". While the Federalist Society seems to be providing the names most of which are either libertarian or conservative, the candidates vary quite a bit in their views on interpreting the Constitution, the "rational basis" test for Constitutionality, the extent of regulation under the Commerce Clause and a host of other issues none of which Trump understands. You have no more chance of divining who Trump will nominate than you would have if the nomination were made by a blind monkey throwing a dart at a wall covered with pictures of candidates.

  • Sevo||

    Sorta like you and that keyboard?

  • vek||

    He delegates. That's how he's always run his shit. That means we'll end up with some pretty decent libertarian/conservative judge of some stripe. Anything is better than anybody a Democrat would select. Obviously I have my preferences, but as long as the person is okay on freedom of speech, gun rights, and likes to shaft government overreach once in awhile it'll be good enough.

  • Brett Bellmore||

    Right, nothing random about it, he delegated the selections to the Federalist society.

    Which isn't just better than any Democrat would do, it's better than the majority of Republicans would do.

    For all I know, he picks randomly from the list, (Though I doubt it.) but, who cares? Everyone on that list is better than most of the current Supreme court justices. He could throw darts at the list to pick his next nominee, and I wouldn't mind.

  • Bob Meyer||

    Trump is picking from the Federalist list. I agree that the list is very good, mostly strong Constitutionalists, but you still can't tell who Trump would choose based on Trump's principles since he hasn't any.

    Red State now has it down to three possibles Amy Coney Barrett, Brett Kavanaugh and Raymond Kethledge. All are better than Garland or any other progressive pick who thinks that the Constitution must be limited and not the government.

    I would have liked Don Willet for his sense of humor and the fact that he grew up in a home where neither of his parents graduated high school but he goes to college and gets a triple degree. When you have to fight your way up from that kind of background it gives you an appreciation of what life is like for most of us.

  • vek||

    Agree with both of you. I'm more of a micro manager who has to fight my instincts to NOT do everything myself, but a LARGE percentage of highly successful people are just good at piecing together the right "team" so to speak, and asking the right experts for advice. Trump may be crazy himself, but he's managed to pick good team members in most of his business career, and so far in politics too for the most part.

    Trump has largely done pretty decent with going to the right organizations and/or right people in picking his team. He's screwed up on some foreign policy people lately and picked Neocons... But other than that I haven't seen almost anybody I thought was horrible.

    In this case he picked a good organization who did a solid job... That's kinda his thing.

  • Bubba Jones||

    He published a list of potential nominees before the election.

    http://en.m.wikipedia.org/wiki.....candidates

  • Chipper Jonze||

    Merrick Garland is a cop fellator.

  • Last of the Shitlords||

    While you watch with one hand clapping, anxiously awaiting your turn?

  • shane_c||

    He's only been on the court a year, you can't tell much about him after just one year. I think he's a social conservative, but I'll admit I can't be certain until I see how he votes on more cases. So I think youre saying you want another Gorsuch before you even know who he really is.

  • vek||

    LOLz.

    I'm not Christian. I still believe in a good chunk of moral values Christians do. So do most people, whether Christian or Hindu or Muslim or Atheist. Many supposed religious issues are really just moral issues, whether one believes in a god or not.

  • vek||

    Did I ever say they did?

    My point is that many issues people paint as "Eval Christianz Being Nazis!!!" Or whatever aren't necessarily just that... They're moral issues that our society has to decide on, which has nothing to do with religion or separation of church and state.

    Abortion, as a for instance. Non religious people can and do oppose abortion. So if people want to try to define a human life as starting at WHATEVER random point, separation of church and state doesn't come into it. Maybe a large portion of those who favor at conception, or 4 weeks, or WTF ever might be Christians or Muslims... But not all. And the argument doesn't necessarily have anything to do with their religion anyway. That issue can be framed in a scientific way.

    Are you in favor of abortions up until the moment the head crests out of the vagina of its own accord? I think that's a bit fucked up... But at conception may be a bit far the other way... Doesn't involve religion AT ALL for me. So society needs to argue this one out, right?

    I'm okay with abortions for the most part, because I'm cool with fever people being born into shitty situations to shitty irresponsible parents... But I can conceive of why some people aren't, including atheists.

  • BillyG||

    Given liberals argued that anti-Kelo amendments were gifts to "big business", I don't see them standing up for the little guy.

  • Seputarbolaku||

    I also with Trump and Grouch must remain optimistic, and establish a close and peaceful relationship.

  • PG23COLO||

    Gorsuch is consistently on the side of denying relief to criminal defendants. He finds their rights unimportant and unprotected by the Constitution. He never stands up for liberty against arbitrary and abusive judicial decisions. He is a comfortable statist.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online