President Donald Trump has announced Judge Neil Gorsuch – a staunch conservative – as his nominee for the vacant ninth seat on the supreme court bench.
Calling Gorsuch “a man who our country really needs, and needs badly, to ensure the rule of law” in the spirit of the late Antonin Scalia, whose seat he would take if confirmed, Trump said his pick would enjoy “tremendous bipartisan support”.
An “honored and humbled” Gorsuch said judges should strive for “impartiality and independence, collegiality and courage”, adding:
A Brief insight into Justice Neil McGill Gorsuch:
Neil McGill Gorsuch (born August 29, 1967) is an American judge on the United States Court of Appeals for the Tenth Circuit. On January 31, 2017, President Donald Trump nominated Gorsuch to be an Associate Justice of the Supreme Court of the United States, to fill the seat left vacant after the death of Justice Antonin Scalia. Gorsuch is a proponent of originalism and textualism in interpreting the U.S. Constitution.
Gorsuch clerked for Judge David B. Sentelle on the United States Court of Appeals for the D.C. Circuit from 1991 to 1992, and then for United States Supreme Court Justices Byron White and Anthony Kennedy, from 1993 to 1994. Gorsuch had been a Deputy Associate Attorney General at the U.S. Department of Justice since 2005. From 1995 to 2005, Gorsuch was in private practice with the law firm of Kellogg, Huber, Hansen, Todd, Evans & Figel. Gorsuch graduated from the Georgetown Preparatory School and received a B.A. from Columbia University (where he was the founder and first chief editor of alternative newspaper The Fed and won a Truman Scholarship). He earned his J.D. from Harvard Law School and Doctorate of Legal Philosophy from Oxford University.
Gorsuch was nominated by President George W. Bush on May 10, 2006, to replace Judge David M. Ebel, who took Senior status in 2006. Gorsuch was confirmed by voice vote by the U.S. Senate on July 20, 2006. Gorsuch was Bush’s fifth appointment to the Tenth Circuit. His first book, The Future of Assisted Suicide and Euthanasia, was published by Princeton University Press in July 2006.
United States Court of Appeals for the Tenth Circuit
On May 10, 2006, Gorsuch was nominated by President George W. Bush to the seat on the United States Court of Appeals for the Tenth Circuit vacated by Judge David M. Ebel when he took senior status. Like Gorsuch, Ebel was also a former clerk of Supreme Court Justice Byron R. White. Just over two months later, on July 20, 2006, Gorsuch was confirmed by voice vote in the U.S. Senate. Gorsuch was President Bush’s fifth appointment to the Tenth Circuit. When Gorsuch began his tenure at the Denver appeals court, Justice Anthony Kennedy administered the oath of office.
Money in politics
Gorsuch has opined that giving money to politicians while running campaigns is a “fundamental right” that should be afforded the highest standard of constitutional protection, known as strict scrutiny.
Freedom of religion
Gorsuch advocates a broad definition of religious freedom and sided with Christian employers and religious organizations in the cases of Burwell v. Hobby Lobby Stores, Inc. and the case of Little Sisters of the Poor Home for the Aged v. Burwell, later consolidated into Zubik v. Burwell. In the Hobby Lobby case, Gorsuch held that the requirement in the Affordable Care Act that employers provide insurance coverage for contraceptives without a co-pay violated the rights of those employers that object to use of contraceptives on religious grounds. He wrote: “The ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct what their religion teaches to be gravely wrong.”
In 2007 in Pleasant Grove City v. Summum, Gorsuch dissented from the denial of rehearing en banc, taking the view that the government’s display of a donated Ten Commandments monument in a public park did not obligate the government to display other offered monuments. Most of the dissent’s view was subsequently adopted by the Supreme Court, which reversed the judgment of the Tenth Circuit.
Gorsuch has written that “the law … doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance”.
In a concurring opinion in Gutierrez-Brizuela v. Lynch, Gorsuch suggested that the 1984 case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.—in which the Supreme Court ruled that the courts should defer to federal agencies’ interpretation of ambiguous laws and regulations—should be reconsidered. In his opinion, Gorsuch wrote that the practice of administrative deference established by Chevron is “more than a little difficult to square with the Constitution of the framers’ design.” Overturning Chevron would lead to shift in power from federal agencies to the courts.
In the 2008 case of United States v. Hinckley, Gorsuch argued that one possible reading of the Sex Offender Registration and Notification Act likely violates the nondelegation doctrine. Antonin Scalia and Ruth Bader Ginsberg held the same view in their 2012 dissent of Reynolds v. United States.
Gorsuch has been an opponent of the dormant commerce clause, which allows state laws to be declared unconstitutional if they too greatly burden interstate commerce. In his opinion for the 2015 case of Energy and Environmental Legal Institute v. Joshua Epel, Gorsuch opined that Colorado’s mandates for renewable energy did not violate the commerce clause by putting out-of-state coal companies at a disadvantage. Gorsuch wrote that the Colorado renewable energy law “isn’t a price-control statute, it doesn’t link prices paid in Colorado with those paid out of state, and it does not discriminate against out-of-staters”.
In the 2012 case of United States of America v. Miguel Games-Perez, Gorsuch ruled on a case where a felon owned a gun in a jurisdiction where gun ownership by felons is illegal; however, the felon did not know that he was a felon at the time. Gorsuch concurred with the opinion that “The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force.”
Gorsuch favors a strict reading of the Antiterrorism and Effective Death Penalty Act of 1996. In a 2003 case, Gorsuch denied requests of death-row inmates seeking to escape executions.
Nomination to the U.S. Supreme Court
In September 2016, during the U.S. presidential election, then-candidate Donald Trump included Gorsuch, as well as his circuit colleague Timothy Tymkovich, in a list of 21 current judges whom Trump would consider nominating to the Supreme Court if elected. In January 2017, after President Trump took office, unnamed Trump advisers listed Gorsuch in a shorter list of eight of those names, who they said were the leading contenders to be nominated to replace the seat vacated by the late Justice Antonin Scalia.
On January 31, 2017, President Trump announced his nomination of Gorsuch to the Supreme Court. Since Gorsuch is 49 years old at his appointment, Gorsuch is the youngest nominee to the Supreme Court since the 1991 nomination of Clarence Thomas at age 43.
Gorsuch is a proponent of originalism, the idea that the Constitution should be interpreted as perceived at the time of enactment, and of textualism, the idea that statutes should be interpreted literally, without considering the legislative history and underlying purpose of the law.
Opposition to “judicial activism”
In a 2005 speech at Case Western Reserve University, Gorsuch said that judges should strive
“to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”
In a 2005 article published by National Review, Gorsuch argued that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda” and that they are “failing to reach out and persuade the public”. Gorsuch wrote that, in doing so, American liberals are circumventing the democratic process on issues like gay marriage, school vouchers, and assisted suicide, and this has led to a compromised judiciary, which is no longer independent. Gorsuch wrote that American liberals’ “overweening addiction” to using the courts for social debate is “bad for the nation and bad for the judiciary”.
States’ rights and federalism
Gorsuch was described by Justin Marceau, a professor at the University of Denver‘s Sturm College of Law, as “a predictably socially conservative judge who tends to favor state power over federal power”. Marceau added that the issue of states’ rights is important since federal laws have been used to reel in “rogue” state laws in civil rights cases.
Gorsuch has never had the opportunity to write an opinion on Roe v. Wade. However, in his 2006 book The Future of Assisted Suicide and Euthanasia, Gorsuch wrote that he opposed euthanasia and assisted suicide and that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”
He is the author of two books. His first book, The Future of Assisted Suicide and Euthanasia, was published by Princeton University Press in July 2006. He is also one of 12 co-authors of The Law of Judicial Precedent, published by Thomson West in 2016.
Awards and honors
Gorsuch is the recipient of the Edward J. Randolph Award for outstanding service to the Department of Justice, and of the Harry S. Truman Foundation’s Stevens Award for outstanding public service in the field of law.