Today the Senate Judiciary Committee begins confirmation hearings on the nomination of Neil Gorsuch to the U.S. Supreme Court.
Gorsuch is a respected legal conservative whose admirers come from across the political spectrum. Not only is he immensely popular among Federalist Society members, he has also earned kudos from the liberal-leaning American Bar Association, which deemed Gorsuch "well-qualified" to serve on the Supreme Court. That is the ABA's highest rating for a judicial nominee.
Gorsuch is perhaps best known in legal circles as a leading critic of the doctrine known as Chevron deference, which takes its name from the Supreme Court's hugely important 1984 ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council. According to Chevron, when the federal courts are tasked with interpreting the meaning of an "ambiguous" federal statute, the courts should adopt the statutory interpretation favored by the federal regulatory agency charged with enforcing that statute. What that means in practice is that federal judges are now routinely tipping the scales in favor of such executive branch agencies as the Internal Revenue Service, the Environmental Protection Agency, and the Board of Immigration Appeals.
To put it mildly, Gorsuch is no fan of the Chevron approach. In his 2016 concurrence in Gutierrez-Brizuela v. Lynch, for example, Gorsuch denounced Chevron deference as a "judge-made doctrine for the abdication of the judicial duty." As far as Gorsuch is concerned, "under any conception of our separation of powers, I would have thought powerful and centralized authorities like today's administrative agencies would have warranted less deference from other branches, not more."
Gorsuch has also been critical of judicial deference to law enforcement agencies. His 2016 dissent in United States v. Carloss, for instance, lambasted the majority's view that police officers had the "implied consent" to enter private property for a warrantless "knock and talk" on a homeowner's front porch when that homeowner had placed numerous "No Trespassing" signs on the property, including on the front door itself. Yet according to the majority's gloss on the Fourth Amendment, Gorsuch remarked, "a homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn't enough to revoke the state's right to enter." In Gorsuch's view, "this line of reasoning seems to me difficult to reconcile with the Constitution of the founders' design."
As I've previously written, "Gorsuch demonstrated admirable and reassuring judgment in these cases. Not only did he cast a principled vote against overreaching law enforcement, he cast a principled vote against the overreaching executive branch. It's not difficult to imagine Gorsuch imposing the same severe judicial scrutiny against the misdeeds of the Trump administration."
Many unanswered questions do still remain about Gorsuch's legal views. For example, he has never written a major opinion in an abortion rights case. Likewise, his views on the full scope of presidential power, including the president's authority to direct immigration policy via executive order, remain unclear. Needless to say, there will be plenty of questions about these and other hot-button issues from the members of the Senate Judiciary Committee.
To get you up to speed in preparation for today's start to the Gorsuch confirmation hearings, here is a selection of Reason's ongoing coverage of the SCOTUS nominee.
- Trump Nominates Neil Gorsuch to the Supreme Court
- 3 Questions for SCOTUS Nominee Neil Gorsuch
- What Neil Gorsuch's Book on Assisted Suicide Reveals About His Views on Abortion Rights
- Neil Gorsuch Follows Justice Scalia's Footsteps on Criminal Justice
- Gorsuch's Track Record Suggests He Won't Be Trump's Rubber Stamp
- Neil Gorsuch Benchslaps Donald Trump, Calls President's Attacks on Judiciary 'Demoralizing' and 'Disheartening'
- Everything You Need to Know About Neil Gorsuch: Q&A with Randy Barnett