The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


More on Sessions v. Dimaya and Crossover Sensation Neil Gorsuch

This may be the first time Justice Gorsuch joined the Court's more liberal judges in a 5-4 decision, but it's unlikely to be the last.


Like Eugene, I was struck by Justice Gorsuch's opinion today in Sessions v. Dimaya. Justice Gorsuch's separate opinion concurring-in-part and concurring-in-the-judgment is thoughtful and provocative. This opinion, and Justice Thomas' dissent, are the opening salvos in what promises to be an interesting intra-originalist debate over the proper scope and applicaiton of the "void for vagueness" doctrine, and the extent to which this doctrine is part of an originalist understanding of Due Process.

It was expected that Justice Gorsuch would cast the deciding vote in Dimaya, so it's fitting that he wrote separately to explain his reasons for joining the judgment of the Court. As Court-watchers will recall, this case was originally argued in January 2017, but the then-eight-member-Court split 4-4. The case was reargued this term before a full Court, so it was clear Justice Gorsuch would determine the case's outcome.

Both Justice Kagan's opinion for the Court and Justice Gorsuch's separate opinion rely upon Johnson v. United States, a case in which the Court invalidated a similar clause in the Armed Career Criminal Act (ACCA). As Justice Kagan notes at the outset of her opinion:

Three Terms ago, in Johnson v. United States, this Court held that part of a federal law's definition of "violent felony" was impermissibly vague. The question in this case is whether a similarly worded clause in a statute's definition of "crime of violence" suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.

The majority opinion in Johnson, it should be noted, was written by the late Justice Antonin Scalia. It was joined in full by the Court's more liberal justices and the Chief Justice. Justices Kennedy and Thomas concurred int he judgment, and Justice Alito dissented. In Dimaya, the Chief Justice joined by Justices Kennedy, Thomas, and Alito, argued that Dimaya was distinguishable. Justice Thomas also wrote a separate dissent, joined in part by Justices Kennedy and Alito.

Is Justice Gorsuch's decision to side with the Court's more liberal judges a sign of things to come? Perhaps. Justice Gorsuch is just as likely to join with the Court's left wing as was the justice he replaced, Justice Scalia, and likely for some of the same reasons. In Justice Scalia's case, his originalism and textualism often led him to embrace criminal defendant-friendly holdings because of the Constitution's express protection of the rights of the accused. Justice Scalia also showed concern for traditional notions of due process—as in the process to which defendants and others are due, not so-called "substantive due process." This led Justice Scalia to be concerned about the vagueness or indeterminacy of some criminal laws. This tendency is noticeable here.

I suspect Justice Gorsuch will decide-against-type at least as often as Justice Scalia, but likely more. While Justice Gorsuch embraces the same judicial philosophy as the late Justice Scalia, he seems less concerned about doctrines that authorize greater judicial scrutiny of government actors, administrative agencies in particular. This could lead Justice Gorsuch to be more solicitous of immigrants and other litigants caught up in the administrative state than Justice Scalia might have been. It could also lead to some interesting line-ups in future cases.

None of this means Justice Gorsuch should be considered a "liberal" justice. To confirm the point, Justice Gorsuch dissented today in Wilson v. Sellers, voting to reject the claims of a habeas petitioner on death row. Wilson was a 6-3 decision, in which the Chief Justice and Justice Kennedy joined the liberal justices, and Justice Grosuch was joined by Justices Alito and Thomas in dissent.