Donald Trump introduced a new ally in his war on regulation this week: Neil M. Gorsuch, his nominee for the U.S. Supreme Court.
If approved, Gorsuch would fill the seat of the late conservative Justice Antonin Scalia — which Congressional Republicans have now kept warm for an unprecedented year by utterly refusing to consider the guy Barack Obama put up. And by most accounts, he’s exactly the carbon copy of Scalia who Trump promised we would get. Some of the early reviews…
“Outstanding legal skills, a brilliant mind, and tremendous discipline” — Donald Trump
“Memorable writing style” — Jeffrey Rosen of the National Constitution Center
“Principled constitutionalist” — Senator Ted Cruz
“Exceptionally clear and routinely entertaining. An unusual pleasure to read” — SCOTUSBlog
Experts say he would be the second-most conservative justice on the current Supreme Court after Clarence Thomas. That would return the court to its status quo before Scalia’s death.
But there are a few hints he might be slightly more conservative than Scalia. He was also a clerk under Justice Anthony Kennedy, who is often considered the swing vote on the court. He might understand his old boss’ way of thinking well enough to persuade him on key votes.
On balance, that could shift the court even further to the right, in a way that would generally favor religious freedom and private business over the federal government. And that’s kind of worrying for our bank accounts, among other things.
Who is Neil Gorsuch?
Despite all Trump’s flair for reality TV, he’s not that great at establishing characters. He introduced Gorsuch Tuesday night with a string of superlatives, including “best.” (There was also a super-awkward handshake where Trump apparently tugged Gorsuch in for a hug and Gorsuch resisted. Nothing says “independent jurist” like a man who says no to hugs.)
He certainly has more credentials to be on the Supreme Court than a man with no public service record does to be president, though I suppose that says more about Trump than Gorsuch.
Trump’s nominee is a relatively young pick at 49 — he attended Harvard with Barack Obama — but has a clear track record from his time on the 10th U.S. Circuit Court of Appeals. When George W. Bush appointed him to that role in 2006, the American Bar Association rated him “unanimously well-qualified.”
Since Trump announced up front he wanted someone “very much in the mold” of Scalia, experts used that to analyze his list of potential nominees. A study published after the election found Gorsuch had the highest potential “Scalia-ness” score, so it’s little surprise he was the guy Trump picked.
Gorsuch, like Scalia, considers himself an “originalist” and a “textualist” — someone who considers the letter of the law as written rather than trying to interpret it through a contextual lens which accounts for up to 250 years of social and technological change the founders could never have predicted.
When announced as the nominee, he said: “I respect the fact that in our legal order it is for Congress, and not the courts, to write new laws. It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome you reach is very likely a bad judge — stretching for results he prefers rather than those the law demands.” That’s a very deliberate echo of Scalia.
Gorsuch and Scalia seem to have similar thinking on a lot of issues ranging from the death penalty to criminal law. In a deep analysis of Gorsuch’s opinions, SCOTUSblog said the “parallels can be downright eerie.” Like Scalia, Gorsuch is a strong supporter of religious freedom. He opposed an Obamacare requirement that religious nonprofits had to cover birth control, and may find some legal basis there for discrimination against gays, women, and other groups in the future.
That could cut both ways, though. Trump’s executive order on immigration, which he has described as a Muslim ban, will almost certainly wind up in the Supreme Court eventually. The same beliefs that might support discrimination against gays might oppose discrimination against Muslims, a religious minority in America.
Labor unions will also come up again in the next Supreme Court term, including the return of a case about fees collected from people who opt out of collective bargaining in a Californian teachers’ union. That ruling could affect unions in more than 20 states, and Scalia’s questions in the case were “consistently hostile” to the union’s position. Expect similar from Gorsuch.
Where Gorsuch and Scalia differ
Most importantly, though, are Gorsuch’s views on federal regulation. His writings suggest a willingness to place new checks on regulators he sees as overstepping their authority. If a law doesn’t explicitly give an agency power to do something, Gorsuch thinks it’s up to the courts to decide whether it can. In this, he may frustrate liberals more than Scalia did.
Scalia generally supported a legal doctrine in administrative law called the Chevron Deference. It basically says: If a federal agency interprets a vague rule to reasonably say it can do something, you should probably let it do that thing — unless it’s clearly breaking another law. It’s been a popular approach since the 80s, but people like Gorsuch believe it gives the executive branch power that rightly belongs to the legislative and judicial branches.
“Scalia had a strong majoritarian streak, meaning he’d often give politically accountable officials latitude to operate, whereas Gorsuch’s record suggests he’s more comfortable with judges’ second-guessing agencies and legislatures,” says University of Michigan law professor Richard Primus. “Gorsuch has called for the end of Chevron deference, which would wrest significant control over agency behavior away from those agencies and vest it in the courts.”
Troublingly for the future of the Consumer Finance Protection Bureau — an agency created just five years ago by Democrats, and so far only led by one — Gorsuch thinks liberals have abused this doctrine to make up for the ground they’ve been losing in Congress.
“American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box,” he wrote for National Review in 2005. That irks him because it politicizes his job, and makes people trust judges less: “Judges come to be seen as politicians and their confirmations become just another avenue of political warfare. Respect for the role of judges and the legitimacy of the judiciary branch as a whole diminishes.”
Republicans will try to dismantle Dodd-Frank and the CFPB from every angle they can, and if they have a clear conservative majority on the Supreme Court, they won’t ignore the judicial avenue.
Why Gorsuch might disappoint Trump
But liberals might also find something to love in Gorsuch that they didn’t in Scalia.
For one, he’s not the cartoonly villainous curmudgeon Scalia so loved being for the left. “Gorsuch’s writing differs from Justice Scalia’s in one major way: His tone is consistently courteous and mild, while some of Justice Scalia’s dissents were caustic and wounding,” The New York Times notes. If there were a Supreme Court movie, Gorsuch would probably be played by an affable Billy Bob Thornton.
And, more importantly, the boon of a strict textualist on the court is that they operate exactly the opposite of Donald Trump. Trump is all about improvisation and “alternative facts” that change by the day. For someone like Gorsuch, the law reads the same one day after another.
That might make it harder to apply the rules from centuries ago to today, but for laws passed under Obama — and going forward,under Trump — we can probably trust he’ll stick to reality and rein in sloppy legislation and the even sloppier executive orders Trump is churning out.