Neil Gorsuch has just completed his first partial term on the Supreme Court. That gives us our first real look at the conservative jurist who was lauded by both traditionalists and libertarians as a brilliant and well-respected originalist.
Filling the late Justice Antonin Scalia’s seat on the high court was one of the main, and successful, arguments President Trump used to bring anti-Trump Republicans “back into the fold” during last year’s the election. Promptly delivering on that promise was one of Trump’s very few major political victories to date.
So how did Justice Gorsuch do on the court?
Good news from a liberty-minded perspective
Gorsuch joined in a dissent with Clarence Thomas of the court’s refusal to address an important Second Amendment case out of California. The court punted on answering whether or not the right to keep and bear arms includes the right to carry a gun.
In two cases – one on federal civil service procedures, and the other on the process for denaturalizing immigrants – Gorsuch spoke up for plain statutory interpretation and against what he saw as legislating from the bench. Far from the typical rote political invocation of this concept, in one of those cases Gorsuch (again with Thomas) agreed with the result while critiquing the Court for going too far in announcing a test not contained in the law. Those shows both a respect for constitutional rights and for the proper role of the judiciary under our system of checks and balances.
Again with Thomas and against the other seven Justices, Gorsuch dissented from the refusal to hear an important campaign-finance and free-speech case out of Louisiana, dealing with the limits imposed on so-called “soft money.”
Some potential social conservative warning signs
However, potentially worrisome were two other dissents: One in the case over Trump’s “travel ban” targeting six Muslim-majority nations, and the other on a case concerning same-sex marriage equality out of Arkansas. In the former, Gorsuch joined the dissenters who wanted to let Trump’s executive order go into immediate effect until the court heard the case in October. On the latter, he dissented from a summary reversal of an Arkansas Supreme Court decision upholding discriminatory treatment of married same-sex parents in regards to the issuance of birth certificates for a legally adopted children.
Justice Gorsuch has largely stuck to the general conservative orthodoxy. He has perhaps even shown himself slightly to the right of the late Antonin Scalia. He has also shown an independent streak, with a clarity of writing and clarity that has won praise even from those with whom he disagrees.
As part of that independent streak, Gorsuch has become only the second Justice currently on the Court to withdraw from the pool of shared law clerks who review certiorari petitions (applications to the Court to hear cases). With Justice Alito, he will instead have his own clerks review and produce recommendations. This represents a heavier workload, but one that could come with greater influence over the Court’s docket.
We have only a partial term and a few early cases upon which we may judge Justice Gorsuch’s role on the court. But it appears likely he will live up to the outsized expectations and be an outspoken anchor of the Court’s right wing for decades to come.
He can be expected to clash with more libertarian impulses from time to time, but on the whole his appointment to the court represents an extremely positive development for devotees of limited government and the rule of law.
(Photo of President Trump introducing Neil Gorsuch by the White House.)