Justice Neil Gorsuch, who will mark his first year on the Supreme Court Tuesday, has delighted conservatives who say he has proven to be the jurist they anticipated he would be.
Though still early in his tenure on the high court, conservatives have much to cheer about Gorsuch, an originalist and textualist who they hoped would be in the mold of the late Justice Antonin Scalia, whose seat Gorsuch filled.
“He has been a very worthy successor,” said Leonard Leo, executive vice president of the Federalist Society and an outside adviser to the president for judicial nominations. “I think Justice Neil Gorsuch has proven to be everything that the president anticipated.”
Gorsuch’s nomination followed political wrangling that left Scalia’s seat vacant for nearly a year following his death in February 2016. Republicans, led by Senate Majority Leader Mitch McConnell, blocked President Barack Obama’s nominee, appeals court Judge Merrick Garland, clearing the way for Trump to tap Gorsuch.
[Neil Gorsuch: Scalia’s views on the Constitution aren’t ‘going anywhere on my watch’]
Trump’s selection of Gorsuch — as well as other judges subsequently nominated to the federal courts — has been one of the president’s most meaningful accomplishments, and one Trump often touts.
With a decade-long record as a judge on the 10th Circuit Court of Appeals, Gorsuch’s nomination pleased conservatives. And now one year since he was sworn in, Republicans are largely in agreement that the newest justice has met their expectations.
“Trump made a promise to appoint someone in the mold of Justice Scalia, and from what we’ve seen, that’s exactly what he did,” said Carrie Severino, chief counsel of the Judicial Crisis Network. “All of those principles he’s talked about — the commitment to the Constitution, the text of the law and not overstepping the text of the law — those are pages right out of Justice Scalia’s own approach to the law, and that’s something we’ve seen from him since he started as well.
“He’s not a clone, but he comes at the law with the same concern about fidelity to the text and original understanding of the Constitution that Justice Scalia was known and loved for.”
While Gorsuch’s supporters haven’t been surprised by what they have seen, neither have detractors who criticize his conservative judicial philosophy.
“Unfortunately, Justice Gorsuch has fulfilled most of our expectations by taking up residence on the extreme right wing of the Supreme Court,” said Nan Aron, president of the Alliance for Justice. “The same narrow-minded elitism we saw in his rulings on the 10th Circuit are reflected in his work on the high court, where he has questioned the principle of ‘one man one vote,’ showed willingness to uphold President Trump’s discriminatory travel ban, and ruled against the rights of LGBTQ Americans and civil rights plaintiffs.”
Last year, several legal analysts hinted that Gorsuch was not getting along with his fellow justices and suggested his style was bothersome to his colleagues.
[Related: Conservatives take a leap of faith on Gorsuch]
Justice Ruth Bader Ginsburg fueled their speculation when she made a cryptic comment in February about the collegiality of the court.
“I respect all of my colleagues and genuinely like most of them,” Ginsburg said, without naming names.
But Leo dismissed those observations as mere rumors.
“There really was no truth to the rumors that his colleagues on the court were perturbed by his approach to questioning from the bench,” he said. “His questioning and his analysis was, I think, predictable, to be expected within the range of what other justices do, and very much akin to the kind of questioning Justice Scalia’s tenure manifested.”
Jumping In
Since he was sworn in one year ago, Gorsuch has hardly taken a wait-and-see approach to his new role.
He authored a 12-page dissent in the first case he heard and took a jab at Justice Anthony Kennedy’s opinion in the 2015 case legalizing same-sex marriage in a dissent in a case requiring Arkansas to list same-sex spouses on a child’s birth certificate.
When the Supreme Court decided to let part of Trump’s second travel ban take effect in June, Gorsuch and Justices Clarence Thomas and Samuel Alito said they would have allowed for full implementation of the executive order.
Gorsuch asked an average of 13.7 questions per argument and agreed with Thomas 100 percent of the time during the October 2016 to June 2017 term, according to statistics compiled by SCOTUSblog. He agreed with Alito 94 percent of the time.
But though Gorsuch has often joined his fellow justices on the conservative wing of the bench, analysts picked up on an emerging split between him and Alito over the Fourth Amendment.
During oral arguments in two cases raising Fourth Amendment claims, Gorsuch took a property rights approach to questions at issue in the cases, a position Alito seemed to reject.
Jamil Jaffer, founder of the National Security Institute at the Antonin Scalia Law School at George Mason University, said Gorsuch has a “libertarian streak, in that he believes strongly in individual liberty,” and noted conservatives shouldn’t assume he will always side with the government.
“I think as you look at his opinions on the 10th Circuit, it’s very clear that the government doesn’t always win in Justice Gorsuch’s courtroom, and the big guy doesn’t always win in Justice Gorsuch’s courtroom,” said Jaffer, a former law clerk for Gorsuch at the Supreme Court. “The one who has the law on his or her side wins.”
The newest justice also surprised court watchers in February when he remained silent during arguments in a case involving public-sector unions, a departure from his forceful questioning of lawyers from the bench.
The court heard a similar case in 2016 but deadlocked 4-4 after Scalia’s death. Gorsuch is expected to be the deciding vote in the case currently before the justices.
Gorsuch’s writing style has led to criticism from legal academia, who started the #GorsuchStyle trend on social media as a means of poking fun at the new justice’s flare.
But Severino dismissed the spotlight put on Gorsuch’s writing and said he is trying to make sure the law is accessible to all Americans.
“What [critics] are picking up on is something he’s talked about in trying to make sure his opinions are accessible to the average person, not just the lawyers in the case,” Severino said. “That’s great because the law is accessible. That is what protects our constitutional style.”
Not keeping a low profile
It’s not only Gorsuch’s activities from the bench that have been the topic of conversation among his critics.
In September, Gorsuch appeared at an event at the University of Louisville with McConnell, whose actions in 2016 paved the way for Gorsuch’s nomination.
Days later, Gorsuch caused a stir when he delivered a speech at a luncheon sponsored by the Fund for American Studies at the Trump International Hotel in Washington.
The Trump-owned property is at the center of a lawsuit arguing the president is violating the emoluments clause of the Constitution.
The newest justice raised eyebrows again in January after Sen. Lamar Alexander, R-Tenn., tweeted that he dined with Gorsuch and others at the home of Sen. John Cornyn, R-Texas.
“I enjoyed having dinner tonight at the home of Senator John Cornyn and his wife Sandy with our newest Supreme Court Justice, Neil Gorsuch, Transportation Secretary Chao and a few of my other Senate colleagues to talk about important issues facing our country,” Alexander wrote.
Aron of the Alliance for Justice said she would have expected Gorsuch to maintain a low profile following his confirmation.
“Yet he seems to be doing the exact opposite, doing campaign-style appearances with Mitch McConnell and speaking at places like the Trump Hotel,” she said.
Jaffer said the criticisms of Gorsuch’s writing and questions during arguments, as well as rumors of disharmony with his fellow justices, have been surprising.
“This idea that he has magically become a completely different person and judge is laughable — he’s the same person, the same judge, the same nice, kind human being who everyone loved on the 10th Circuit and who won multiple awards for his writing while on that court,” he said. “He didn’t change magically and grow horns and a tail when he got to the Supreme Court or somehow become a terrible writer. Totally ridiculous.”
Rather, Jaffer says Gorsuch has proven himself to be the same jurist he was before joining the high court.
“He has shown himself to be the judge that everyone thought he was going to be. There are no surprises here,” he said. “He had a 10-year record on the bench, had a long, extended conversation with the Senate Judiciary Committee, and nothing has changed from when he was on the 10th Circuit.”
