Gorsuch and Scalia

            Conservatives wanted the replacement for Justice Antonin Scalia to have a similar judicial philosophy, and Donald Trump and the Congress delivered such a man. In his first month as an associate justice on the Supreme Court, Justice Neil Gorsuch is acting much as Scalia once did.

            John-Michael Seibler shared some of the similarities between Scalia and Gorsuch in his article titled “In His First Criminal Cases, Neil Gorsuch Already Mirroring Scalia.” Although there is a lot of “lawyer speak” in his article, I will try to put it in plainer language. Seibler begins by stating that Gorsuch “asked sharp questions from the bench” in “several difficult criminal law cases” and then shares some examples.

The Death Penalty in Arkansas: In McGehee et all. V. Hutchinson Gorsuch voted to deny several Arkansas death row inmates’ requests to halt their executions. [While the minority questions if “the death penalty is consistent with the Constitution,” the majority – including Gorsuch – might have relied on the reasoning of Scalia in a prior case. Scalia wrote that “not once in the history of the American republic has this Court ever suggested the death penalty is categorically impermissible.” “The reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates.”] In McGehee, Gorsuch held firm, silently adopting Scalia’s constitutionalist reasoning.

No ‘Linguistic Somersaults’: Gorsuch demonstrated his adherence to textualism through some of the questions he posed to the advocates during oral argument in Maslanjak v. U.S. [This case is about whether or not to revoke citizenship from a person who lied to a U.S. immigration official in order to become a naturalized citizen. The decision may affect how the government revokes citizenship for other people.] In the midst of this high stakes argument, Gorsuch’s questions focused on one issue in particular: The text of the law itself. The statute, Gorsuch noted, “doesn’t contain an express materiality provision,” and Gorsuch was concerned about having to do “a lot of linguistic somersaults to add” such a provision into the law. [This statement is similar to Scalia’s dissenting opinion in King v. Burwell (2015) about Obamacare.] Scalia wrote that “[t]he somersaults of statutory interpretation” that the majority “performed (‘penalty’ means tax … ‘established by the state’ means not established by the state) will be cited by litigants endlessly, to the confusion of honest jurisprudence.” Gorsuch appears sympathetic to Scalia’s disapproval of “linguistic somersaults” and the idea that judges are empowered to rewrite laws that they may disagree with.

The Big Picture: Gorsuch showed a keen awareness of how the Supreme Court’s rulings carry far-reaching implications for future cases in Weaver v. Massachusetts. [This case is about a man convicted of “unlicensed possession of a firearm and premediated murder” at the age of 16. He “sought a new trial claiming that his counsel was ineffective” because the courtroom was closed during selection of the jury. “Chief Justice John Roberts pointed out” that the room was full of potential jurors. The man was upset because his supporters were not allowed to enter the courtroom.] At this point, Gorsuch entered the fray with a big picture question. He asked whether a “triviality exception” might apply here, or whether the Court should consider the potential unintended consequences that can arise when it tries to prevent every injustice – no matter how small – by imposing new procedural requirements across the entire criminal justice system…. [This is similar to comments made by Scalia in several cases.] So far, Gorsuch is modeling this Scalia-esque approach and honoring the rule of law.

            Seibler’s article gives much more information than I am able to share. He closes his commentary comparing the similarities between Scalia and Gorsuch with this statement:

Throughout his nomination and confirmation process, Heritage Foundation legal scholars noted Gorsuch’s striking similarities to Scalia, which include a shared sensitivity to overcriminalization, textualism, and the separation of powers.

In these first few cases, Gorsuch is showing just how well he fits the Scalia mold of being a committed constitutionalist and textualist on the High Court.

            It appears that conservatives received exactly what they wanted, a new Justice like Scalia.

We wanted a Justice that would follow the Constitution in his rulings as Gorsuch seems to be doing. Hopefully, President Trump will have more opportunities to select Justices and will bring more such Justices to the High Court.