Of course, it would be unfair to compare him to Justice Scalia, whose seat he is nominated to fill. As Andrew Ferguson observed last year, Scalia was a legendarily great judicial writer, ranking among John Marshall, Oliver Wendell Holmes, Robert Jackson, and the Supreme Court’s other all-time greats.
But if the Senate consents to Gorsuch’s appointment, then he will fit in well alongside several other keen writers. He may not rival, say, the Chief Justice’s poetic flair, but he’ll be a great read. He’s especially good at starting an opinion with imagery that draws the reader in—which is no small task, given the stuff of ordinary federal regulation.
Here are a few examples that caught my eye, from just some of his more recent Tenth Circuit opinions (with some legal citations, brackets, and quote marks omitted):
On our duties to God and country: Hobby Lobby v. Sebelius (2013)
All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case.
On the trials of a judge: U.S. v. Sabillon-Umana (2014)
Sentencing someone to prison has to be one of the district judge’s toughest tasks. So much is at stake for the defendant, the victim, and the community. So much responsibility rests on the judge’s shoulders, along with the high expectation that the judge will wisely weigh things that cannot be easily weighed. How much punishment is enough to protect the public? To deter future wrongdoing? To reflect the gravity of the offense? And how much punishment suffices to accomplish all these things without verging on cold revenge or needless retribution? There’s rarely a single right answer to hard questions like these. So our system depends, as perhaps it must, on the discretion of thoughtful judges.
On antitrust and baseball: Direct Marketing v. Brohl (2016)
Years ago and speaking through Justice Holmes, the Supreme Court held baseball effectively immune from the federal antitrust laws and did so reasoning that the ‘exhibition of baseball” by professional teams crossing state lines didn’t involve “commerce among the States.’ Federal Baseball Club of Balt., Inc. v. Nat’l League of Prof’l Baseball Clubs (1922). Since then the Supreme Court has recognized that other organizations offering “exhibitions” in various states do engage in interstate commerce and are subject to antitrust scrutiny. … But though it has long since rejected the reasoning of Federal Baseball, the Supreme Court has still chosen to retain the holding itself — continuing to rule baseball effectively immune from the antitrust laws, if now only out of respect for the reliance interests the Federal Baseball decision engendered in that particular industry. … And, of course, Congress has since codified baseball’s special exemption. … So it is that the baseball rule now applies only to baseball itself, having lost every away game it has played.
On the Napa Valley of hot peppers: El Encanto v. Hatch Chile Co. (2016)
The Hatch Valley may be to chiles what the Napa Valley is to grapes. Whether it’s the soil, the desert’s dry heat, or the waters of the Rio Grande, the little town of Hatch, New Mexico, and its surroundings produce some of the world’s finest chile peppers. Just ask any of the 30,000 people who descend on the place every year for the chile festival. One thing we know about life and the law is that where value lurks litigation will soon follow — and the Hatch Valley chile pepper supplies no exception.
On truckers … and on keeping judges in their own lane: TransAm Trucking v. Administrative Review Board (2016)
A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck. He called his company for help and someone there gave him two options. He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a legal if unpleasant option). The trucker chose None of the Above, deciding instead to unhook the trailer and drive his truck to a gas station. In response, his employer, TransAm, fired him for disobeying orders and abandoning its trailer and goods. It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.
On why close counts in hoods, horseshoes, and hand grenades: Bustos v. A&E Television Networks (2011):
Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise? The answer is no. While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true. And that is enough to call an end to this litigation as a matter of law.
Adam J. White is a research fellow at the Hoover Institution.
