When President Trump picked a replacement for the late Justice Antonin Scalia he promised conservatives someone in the same mold — a New Scalia, as legal observers put it.
Two years into his term, Justice Neil M. Gorsuch has exceeded those conservatives’ expectations, carving out a role as a superb writer and careful advocate for the originalist approach to the Constitution that Scalia helped pioneer.
“Being a true originalist, he’s probably a little more Scalia than Scalia,” said Curt Levey, president of the Committee for Justice. “He’s more than lived up to Trump’s promise.”
The comparisons go beyond the legal realm, too. Justice Gorsuch has even built an unlikely friendship with one of the court’s liberal members, Justice Sonia Sotomayor, just as Scalia did with arch-liberal Justice Ruth Bader Ginsburg, a frequent coupling at operas.
“It could be the next Scalia-Ginsburg friendship,” said Mike Davis, a former clerk to Justice Gorsuch. “I don’t think Gorsuch will want to go to the opera though.”
Justice Gorsuch was confirmed by the Senate on April 7, 2017, to a seat that had been vacant for more than a year after Scalia’s death in February 2016. Republicans who controlled the Senate rebuffed then-President Obama’s pick, saying the winner of the 2016 election should make it.
The GOP’s success in holding the Senate and capturing the White House put the decision in the hands of Mr. Trump, who had campaigned on a promise to pick from a list of known conservatives — and settled on Justice Gorsuch, at the time a judge on the 10th U.S. Circuit Court of Appeals.
Justice Gorsuch quickly distinguished himself, writing what The New York Times dubbed “remarkably self-assured” opinions.
He picked fights over small but important footnotes, delivered stern spankings to colleagues over his view of the court, and set the legal community atwitter with one ruling last April, just after his first anniversary on the court, where he delivered a Scalia-like decision siding with the court’s four liberal justices — though for his own reasons.
In that case, Sessions v. Dimaya, Justice Gorsuch ruled that a section of law Congress wrote allowing deportation of legal immigrants who commit “crimes of violence” was so vague that it couldn’t stand.
“Gorsuch sides with Libs,” blared a headline on DrudgeReport.com.
But legal analysts said Justice Gorsuch sided with Scalia’s memory more than he did the four liberal members of the high court. That’s partly because Justice Gorsuch relied on a Scalia precedent in his ruling, but also because of his willingness to strike out on his own.
“He’s shown himself to be a very independent judge,” said David Feder, another former law clerk to Justice Gorsuch. “Very much in the mold of Justice Scalia as the president promised.”
Mr. Levey also pointed to the Dimaya ruling.
“What we really want is not a conservative activist. We want someone who really believes what Gorsuch said at his hearing, which is the court should be strictly interpretative and defer to Congress,” Mr. Levey added.
Over his first two years, Justice Gorsuch has authored 10 majority opinions. Four of those have been unanimous, while five have been 5-4 decisions.
Court watchers at SCOTUSBlog said he was also writing lengthier concurrences than his colleagues, which they said likely contributed to the slower pace of releasing opinions last year.
Liberals had feared Justice Gorsuch would be a rubber stamp for Mr. Trump’s agenda, and they have had no shortage of complaints about his rulings since.
A decision last week arguing that a death row inmate with a rare medical condition couldn’t dictate the terms of his execution to the state enraged the left.
ThinkProgress called it “bloodthirsty and cruel,” while The Nation said the justice “just made death worse.”
But Justice Gorsuch said quibbles over execution drugs had become a backdoor attempt by lawyers and death row inmates to try to curtail the death penalty, and he said that decision should be left squarely out of the hands of crusading judges.
“Of course, that doesn’t mean the American people must continue to use the death penalty,” he wrote. “The same Constitution that permits states to authorize capital punishment also allows them to outlaw it. But it does mean that the judiciary bears no license to end a debate reserved for the people and their representatives.”
Elliot Mincberg, a senior fellow at the progressive People for the American Way, said fears about Justice Gorsuch have been realized, noting he is often the tie-breaking vote in favor of the conservative wing of the court.
“Gorsuch himself provided the fifth vote to do significant damage such as upholding the Trump Muslim ban, approving Ohio’s purge of over a million voters and reversing a decades-old precedent that protected workers right to organize,” Mr. Mincberg said.
His law clerks, though, say Justice Gorsuch is not a “results-oriented judge.”
“Justice Gorsuch always says he doesn’t like the result he has to come to many times, but that’s not his job. It’s not his job to like or dislike the result the law commands,” Mr. Davis said.
And then there’s the friendship with Justice Sotomayor. They’ve teamed up to promote civics education, and have developed a rapport as they sit next to each other.
During one oral argument, Justice Sotomayor even pinched Justice Gorsuch to demonstrate a particular level of force, catching onlookers off guard. Justice Gorsuch pretended to be in pain, causing the audience in the courtroom to laugh.
“He gets along with everyone,” Mr. Feder said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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