Gorsuch Style in Year One Said to Fulfill Conservative Promise

WASHINGTON (CN) – Taking stock of Neil Gorsuch’s first year on the Supreme Court, legal experts say the justice has hewed to the conservative values that President Donald Trump promised to recognize in selecting a nominee.

“I think he so far has demonstrated that he is exactly who the people who selected and appointed and confirmed him hoped that he would be in every respect,” Ian Samuel, a fellow and lecturer at Harvard Law School said in an interview. “So if you were a person in the 2016 election, for example, that voted for Donald Trump because you really cared about the disposition of that empty Supreme Court seat, I think you would look at Neil Gorsuch and you would be very happy.”

Experts caution that it can be difficult to appraise a justice after such a short time on the bench, but that nothing in Gorsuch’s record, from his close voting relationship with Justice Clarence Thomas to his lofty writing style, suggests anyone should change their expectations for his tenure.

“So far you’ve got an extraordinarily reliable conservative who as of yet hasn’t demonstrated what precisely his conservative voice is,” said Mark Graber, a professor at the University of Maryland Carey School of Law.

In the 2016 presidential election, 21 percent of voters said the “most important factor” in their choice was the Supreme Court seat left vacant by the historic, year-long blockade by Senate Republicans of President Barack Obama’s choice for the position. Of those voters, 57 percent chose Trump, compared with 40 percent who went for Hillary Clinton, according to ABC News exit polls.

After Senate Republicans spent the better part of a year refusing to hold even a hearing on Obama’s nominee, D.C. Circuit Chief Judge Merrick Garland, Trump nominated Gorsuch on Jan. 31, 2017 in a primetime television address.

Nearly a week of confirmation hearings before the Senate Judiciary Committee ensued, and Republicans confirmed Gorsuch on April 7, having voted to eliminate the filibuster for Supreme Court nominations.

Gorsuch sat for his first round of oral arguments at exactly this time last year, March 17, 2017. If there were questions about Gorsuch’s conservative style then, his close voting relationship with Thomas appears to have answered them. Gorsuch has signed onto the same opinion as Thomas in the overwhelming majority of cases in which the court has ruled on the merits — a trend that Samuel said Gorsuch’s background would suggest.

“Gorsuch self-identifies as a textualist and an originalist, so in that sense, everything he’s said about himself, I think it makes perfect sense that he and Justice Thomas are probably going to agree on a lot of things,” Samuel said.

In Trinity Lutheran v. Comer, a major case the court decided last year concerning the constitutionality of a Missouri policy that prevents religious groups from receiving certain state grants, Gorsuch and Thomas sided together three times – once under the majority opinion Chief Justice John Roberts authored, once in a concurrence Thomas offered and a third time in a separate concurrence Gorsuch wrote and Thomas joined.

Samuel also noted Gorsuch’s behavior at oral arguments has a hint of Thomas, as the Trump appointee is willing to press attorneys with legal theories that are not directly tied to the briefs filed in the case. This gives voice to a characteristic of Thomas’ written opinions that does not shine otherwise because Thomas is almost exclusively silent during oral arguments.

But the cases in which Gorsuch has departed from Thomas shed light on where the Trump appointee might distinguish his own conservative voice.

In Marinello v. United States, which the court decided last month, Gorsuch sided with the majority in trimming back a provision of the tax code that allowed the government to charge anyone who “corruptly … obstructs or impedes, or endeavors to obstruct or impede the due administration” of the tax code.

Writing for the majority, Justice Stephen Breyer held the government’s interpretation of the provision was inviting prosecutorial abuse and that prosecutors must show a connection between a particular administrative action and any alleged rule breaking. But Thomas wrote separately that the majority was reading the law too broadly and that, as written, the government’s prosecution was correct.

“The court may well prefer a statute written that way, but that is not what Congress enacted,” Thomas wrote in his dissent.

This could be a sign of things to come for Gorsuch, as the court is poised to resolve a series of criminal-procedure cases in the coming weeks.

With Gorsuch compared frequently to the late Justice Antonin Scalia, who had formed a coalition of sorts with the liberal justices of the court on criminal-procedure issues, court watchers will look carefully to see where the Trump appointee stands.

“I hope he writes an opinion in one of these criminal-procedure cases, because I really would love to see his method,” Samuel said. “Because Justice Scalia was really an anchor of a five-member working majority on the court that was, in many cases, very pro criminal defendant in these criminal-procedure cases, and I’m very much curious to see if Justice Gorsuch shares those views or not.”

Gorsuch could have such a chance soon, as he and Justice Sonia Sotomayor appeared to fall on the same side of two Fourth Amendment cases from January that remain pending before the court.

If Gorsuch is able to author opinions in the area, they are likely to be among the most stylistically scrutinized that the court will release. Hailed as a strength from his time as an appellate court judge, Gorsuch’s writing style has become the subject of derision for some, particularly on social media.

“He clearly is moving toward the Scalia mode, which is writing for the television news more so than for legal analysts, but it’s a little too early to tell,” said Graber.

Critics have faulted Gorsuch for overwriting and overexplaining his opinions, particularly in Artis v. District of Columbia, the Jan. 22 opinion in which Gorsuch referenced English writer G.K. Chesterton.

“Chesterton reminds us not to clear away a fence just because we cannot see its point,” Gorsuch wrote. “Even if a fence doesn’t seem to have a reason, sometimes all that means is we need to look more carefully for the reason it was built in the first place.”

But Samuel said Gorsuch’s style is still a strength, regardless of how critics have portrayed it. He said Gorsuch is clearly adopting the same goals as Scalia by “aiming for the casebooks” with his writing. And while his writing has drawn its share of criticism, Gorsuch is looking beyond internet praise and toward the minds of young lawyers and students who are still forming opinions on legal issues, Samuel added.

“On a long enough time scale, you’re trying to persuade thousands and thousands of laws students to see things your way so that when they’re in charge they’ll appoint people and do things like that who agree with you,” Samuel said.

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