The Volokh Conspiracy

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Volokh Conspiracy

Neil Gorsuch, fortunately


Trump has just nominated Tenth Circuit Judge Neil Gorsuch for the empty seat on the Supreme Court. I've known Neil Gorsuch for 20+ years, when he was co-clerks with my brother Eugene: he was a Byron White & Anthony Kennedy clerk in 1993-94, the same year that Eugene clerked for O'Connor. Generally, I don't have any expectation that Trump will do the right thing, so I'm unexpectedly pleased that—of the three judges who were apparently on Trump's short list—Judge Gorsuch is probably the best on civil liberties issues.

Since the election, I've been a board member of the 11/9 Coalition, "a nationwide, non-partisan, grassroots organization working for the protection of civil liberties and the rule of law . . . founded by concerned US citizens on 11/9/16, the day after the presidential election of 2016 [and] dedicated to holding public servants, including elected officials, to their obligations to preserve and defend the Constitution, without regard to their political affiliation." The other board members are listed here.

Here's what the Coalition says about Supreme Court nominees:

Because it is of the utmost importance to the protection of civil liberties who will fill the vacancy on the United States Supreme Court, the 11/9 Coalition enlisted dozens of volunteers who poured hundreds of hours of research into the records of President Donald Trump's potential nominees. We have concluded that while none of the likely nominees seems as committed to civil liberties as we would like, one of the purported three finalists for the position (who are Judges Neil Gorsuch, Thomas Hardiman, and William H. Pryor Jr.) is notably less worrisome than the others: Judge Gorsuch. We make available our summaries of the civil liberties records of the three judges and hope that whoever is chosen shows a deep commitment moving forward to the freedoms guaranteed by our Constitution.

At this linked page, you can find a 9-page PDF summary of Judge Gorsuch's major opinions, covering the following areas: Fourth Amendment / Criminal Law / Death Penalty, Immigration, Second Amendment, First Amendment / Establishment Clause / Religious Liberty, and Separation of Powers / Chevron. (Note: this document wasn't written by me personally.) This last bit is particularly interesting—last year, in Gutierrez-Brizuela v. Lynch, Judge Gorsuch wrote that Chevron and Brand X (two administrative law decisions that, broadly speaking, grant broad lawmaking powers to administrative agencies) are inconsistent with the separation of powers.

I hope you find this 9-page document useful as you evaluate Judge Gorsuch's record. As they say, Read The Whole Thing. (If for some reason the link doesn't work, try clicking from this page.)

Oh, and—what's the best Gorsuch line? "Ours is not supposed to be the government of the Hunger Games with power centralized in one district, but a government of diffused and divided power, the better to prevent its abuse."

P.S. This post takes no position on anything related to the Garland confirmation. For purposes of this post, I take as given that Garland is off the table and some Trump nominee will be confirmed. My new wisdom is: "If Trump's first choice is, unexpectedly, good, take it, because the second choice will surely be worse."