Judge Neil Gorsuch is Republican nobility — the son of Anne Gorsuch Burford, who spent her brief tenure as President Reagan’s EPA administrator cutting staff and gutting anti-pollution regulations before resigning amidst scandal.
More than three decades after his mother’s resignation, Gorsuch now has the opportunity to wage an even more wide-ranging crusade against federal regulation. Gorsuch is President Trump’s nominee to the Supreme Court seat Senate Republicans held open until Trump could fill it. And his record suggests that he will become big business’ dream justice.
In a 2016 lecture at Case Western Reserve law school, Gorsuch spoke of his profound admiration for the conservative jurist Trump tapped him to replace, Justice Antonin Scalia. When Gorsuch learned of Scalia’s death, “I was taking a breather in the middle of a ski run with little on my mind but the next mogul field.” After his phone rang and he heard the news, the judge says that he is “not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears.”
Gorsuch told the law school audience that “perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators.” While legislators may bring their own desires and moral convictions to the lawmaking process, judges, must instead “apply the law as it is,” leaving their own values and preferences out of the process.
A vote against reproductive rights
Much of Gorsuch’s record does track Scalia’s, especially in so-called “culture war” cases. Gorsuch sided with religious employers seeking to limit their employees’ rights to birth control coverage, for example, in the lower court decision in Hobby Lobby.
Similarly, while Gorsuch has never ruled directly on the viability of Roe v. Wade, he wrote a 2009 book, entitled The Future of Assisted Suicide and Euthanasia, that is heavy with the kind of political rhetoric opponents of abortion deploy in the battle over reproductive choice. “Human life is fundamentally and inherently valuable,” Gorsuch wrote in his book, adding that “the intentional taking of human life by private persons is always wrong.”
As Ed Whelan, a former law clerk to Justice Scalia who writes frequently on the courts puts it, “Gee, might that principle have any application to abortion?”
There’s one other case suggesting that Gorsuch will be particularly aggressive in seeking to limit abortion rights. In Planned Parenthood Association of Utah v. Herbert, Gorsuch argued that the full Tenth Circuit should reconsider a factual dispute over whether Utah Gov. Gary Herbert acted with an improper motive (as well as a related dispute over how to interpret a trial judge’s order) when he cut off funds to Planned Parenthood. A panel of Tenth Circuit judges temporarily restored the funding while this case was awaiting trial, and Gorsuch objected to this decision.
Under the Tenth Circuit’s rules, a full-court hearing of this kind is “not favored” and typically will not occur unless a case “involves a question of exceptional importance” or creates inconsistency within the court’s own precedents. It would be extraordinarily unusual — possibly even unprecedented — for the full court to take up a case that turned on a factual dispute with minimal legal implications for future cases. And yet Gorsuch felt that such an extraordinarily unusual action was necessary when presented with a decision benefiting a major abortion provider.
For all that Gorsuch praised Scalia for advocating a limited role for the judiciary, Gorsuch most notable idea is a proposal to consolidate power within the judiciary. Indeed, if Gorsuch is confirmed, and if his views ultimately prevail on the Court, then it is likely the Supreme Court will play a greater role in deciding how Americans are governed than it has at any point since the 1930s.
One of the most consequential, and most widely-cited, Supreme Court cases of the last half-century is Chevron v. Natural Resources Defense Council. Chevron is a monument to judicial modesty, establishing that the one unelected branch of government should play a minimal role in resolving questions of policy.
When a law is ambiguous, Chevron explains, courts should defer to how the federal agency that administers that law resolves the ambiguity rather than deciding themselves how the law should be interpreted. Thus, if an agency hands down a new rule, courts generally will allow that regulation to stand unless it is pretty clear that the law does not permit that regulation.
“Judges are not experts in the field,” Justice John Paul Stevens explained. So they are more likely to be wrong about environmental questions than specialists within the EPA, and more likely to be wrong about labor questions than similar specialists with the Labor Department.
Additionally, Chevron recognized that agencies have democratic legitimacy that courts do not. “While agencies are not directly accountable to the people,” Justice Stevens acknowledged, “the Chief Executive is.” Thus, “it is entirely appropriate for this political branch of the Government” to make policy choices, rather than leave the matter to judges with no accountability to the electorate.
Yet Gorsuch, in 2016 concurring opinion in Gutierrez-Brizuela v. Lynch, claimed that Chevron “seems more than a little difficult to square with the Constitution of the framers’ design.” Instead of deferring to agencies, Gorsuch would have judges make their own judgments about with regulations should stay and which should go.
On the surface, this may seem like an apolitical viewpoint. Gorsuch wants to consolidate more power in the branch of government he happens to belong to and reduce the power of another, elected branch. But, at least in the abstract, overruling Chevron does not necessarily mean that courts will reach liberal or conservative results.
Except that, if Gorsuch is confirmed to the Supreme Court, Republicans could control the nation’s highest Court for a generation. Gorsuch does not simply want to transfer power away from an elected branch and towards an unelected one, he wants to transfer power to the branch that the Republican Party has the tightest grasp on.
That has profound implications for the next several decades of American governance. In a world without Chevron, a Republican Supreme Court can smile upon rules that deregulate the workplace or that reduce pollution standards, while simultaneously striking down rules that protect workers or fight climate change. Elections will have far fewer consequences, since so much power will be concentrated in a conservative Supreme Court.
Right on crime
Setting aside his cultural conservatism, there are some indications that Gorsuch leans towards the libertarian end of the conservative spectrum.
Under the well-established doctrine of qualified immunity, police are immune from suit for their official actions unless they violate “clearly established” law. So a cop may break the law, but nonetheless be safe from judgment because there was some uncertainty at the time of the violation about whether the officer acted illegal.
In A.M. v. Holmes, two of Gorsuch’s conservative colleagues held that a police officer was immune from suit after he arrested a seventh graders for making burping sounds during class, despite the fact that state law “does not criminalize ‘noise[s] or diversion[s]’ that merely ‘disturb the peace or good order’ of individual classes.” Gorsuch dissented from this decision, suggesting that the teacher should have sent the student to detention or the principal’s office rather than turning this case into a criminal matter.
As Vox’s Dylan Matthews and Dara Lind point out, Gorsuch also “expressed concern with overcriminalization,” in a 2013 speech to the conservative Federalist Society. The Federalist Society speech is notable, however, in that it largely tracks concerns raised by conservatives, and, especially, business groups, regarding the criminal justice system.
In the later years of the Obama administration, an uneasy alliance emerged between liberals and conservatives in favor of criminal justice reform. Liberal and leftist critiques largely tracked the arguments raised in Michelle Alexander’s The New Jim Crow and in Justice Sotomayor’s dissenting opinion in Utah v. Strieff: Police disproportionately target low-income communities and communities of color. Constitutional safeguards, such as the Fourth Amendment’s limits on unreasonable searches and seizures, have been pared down to the point that they no longer protect against police overreach. Minor offenses, most especially drug crimes, carry massive sentences that disrupt lives, families, and communities. And felony disenfranchisement strips these communities of the political power they need to fight back.
Meanwhile, conservative business groups offer a different critique. There are too many crimes targeting what they believe to be ordinary business activity, and there is too much power delegated to federal agencies to set the bounds of these criminal laws. Businesses must either pay for expensive legal counsel to ensure their compliance with the law or risk being fined.
These are not incompatible critiques, and there are many advocates who agree with both of them. But it is worth noting that Gorsuch’s Federalist Society speech largely tracks the business case for criminal justice reform. “Today we have about 5,000 federal criminal statutes on the books, most of them added in the last few decades, and the spigot keeps pouring,” Gorsuch complained. “Businessmen who import lobster tails in plastic bags rather than cardboard boxes can be brought up on charges. Mattress sellers who remove that little tag? Yes, they’re probably federal criminals too.”
So, while Gorsuch clearly has concerns with the breadth of our criminal justice system, it is an open question whether he would ally with Sotomayor to fight racial injustice in the criminal law and mass incarceration. His Federalist Society speech, moreover, dovetails well with his critique of Chevron — that there are simply too many regulatory burdens of the kind that primarily target business.
There will no doubt be much celebration at the U.S. Chamber of Commerce and at Koch Industries if Gorsuch is confirmed. Women, workers, voters, and the Earth itself will have less to celebrate.