Brief Background:
Education: Columbia (B.A., Harvard (J.D.), Oxford (Ph.D.)
Current Role: Judge on the 10th Circuit U.S. Court of Appeals
Name: Neil Gorsuch
Age: 49
Interesting facts:
Judge Gorsuch is the youngest nominee since Justice Thomas in 1991, although both Justice Kagan and Chief Justice Roberts were 50 at the time of their nominations.
If confirmed, Gorsuch will be the first person to serve with a member of the Supreme Court for whom he previously clerked, Justice Kennedy.
Gorsuch graduated from Harvard Law in the Class of 1991, the same class as President Obama.
A recent study found that Gorsuch was the second most Scalia-like potential nominee on Trump’s shortlist and was ahead of every judge who made it to final stages (including Thomas Hardiman, William Pryor, and Raymond Kethledge).
Qualifications:
Judge Gorsuch has a very impressive resume. His educational background includes Columbia, Harvard (as a Truman Scholar), and Oxford (as a Marshall Scholar), culminating in one of the best educational resumes for a Supreme Court nominee. In the past, he clerked for both Justice Kennedy and Justice Byron White (who retired in 1993 and passed away in 2002) as well as Judge David Sentelle of the District of Columbia Court of Appeals. Prior to his appointment to the Tenth Circuit Court of Appeals, Gorsuch spent time as a lawyer with a prestigious D.C. law firm before joining George W. Bush’s Justice Department as the Principal Deputy to the Associate Attorney General for one year. He was appointed to the Tenth Circuit in 2006 and was confirmed by voice vote in the Senate. Gorsuch has spent the last decade as a Judge with the Tenth Circuit Court of Appeals.
On the issues:
Gorsuch has built up a reputation as a younger Antonin Scalia based on his strong conservative beliefs and his ideological view that legal analysis should be based solely on the exact text of the Constitution, a constitutional line of thought known as textualism. Where do those views leave him on major constitutional issues?
Religion:
Perhaps the most famous case Gorsuch presided over was Hobby Lobby Stores v. Sebelius, referred to as Burwell v. Hobby Lobby Stores, Inc. when appealed to the Supreme Court thanks to Kathleen Sebelius’s resignation. The decision held that, under the Religious Freedom Restoration Act of 1993, corporations may have religious rights and cannot be forced to provide contraception if it conflicts with the corporation’s owner’s religious beliefs. This decision is representative of a lot of Gorsuch’s opinions on religious freedom: Gorsuch prioritizes an individual’s (or any non-governmental group’s) right to freedom of religion over the government’s ability to compel them to act in a certain manner. The other important aspect of his views on religion is his loose interpretation of the Establishment Clause, the part of the First Amendment which states, “Congress shall make no law respecting an establishment of religion…” thereby guaranteeing the freedom of religion for all Americans. In several cases, as former Supreme Court Clerk, attorney, and legal writer Eric Citron explained, Gorsuch has criticized “the ‘reasonable observer’ test for establishment clause cases as far too likely to find impermissible endorsements of religion by the government when none was intended, and thus to prevent religious adherents from reasonably participating in public life.” Specifically, in both American Atheists Inc. v. Davenport and Green v. Haskell County Board of Commissioners, Gorsuch wrote dissenting opinions, arguing that the government can accommodate religious individuals and publicly display particular religious symbols without overstepping the Establishment Clause of the Constitution. Gorsuch’s broad interpretation of the Establishment Clause is an important realm of his thought to keep in mind should he be confirmed.
Crime:
Gorsuch’s conservatism translates to some concerns about criminal law being upheld fairly rather than harshly. Gorsuch is an outspoken opponent of overcriminalization, going as far as to say that if someone did not know that they were a felon, they should not be punished for owning a gun even if it was illegal for them to own it (United States v. Games-Perez). However, Gorsuch holds several more mainstream conservative views, including his general unfavorability towards death penalty challenges and his issuance of opinions in the past which challenge the importance of competent representation. Overall, Gorsuch has the potential to be, as writer Ephrat Livni writes, an “ally of underdogs in criminal court, as his predecessor was,” but his lack of emphasis on defendant’s rights to counsel could have disastrous effects on poor defendants already stuck in an inefficient public defense system.
Abortion and Same-Sex Marriage:
An important caveat to understand before any discussion of Gorsuch’s views on these issues is that “he has never directly stated his opposition to hot-button legal issues like abortion and same-sex marriage,” according to Mark Joseph Stern of Slate. Based on Gorsuch’s opinion in Hobby Lobby, it seems likely that he would side with a baker or pizza shop owner in a case over religious freedom in providing services for a same-sex wedding. Another important factor in determining Gorsuch’s likely views on same-sex marriage is his textualist interpretation of the Constitution. Extending protections to same-sex couples on a variety of issues would seem to be inconsistent with Gorsuch’s understanding of the Constitution’s original purpose, as often argued by Justice Thomas and the late Justice Scalia. The implications of his textualist views probably also weigh heavily in his opinion of abortion. While he once again does not have a stated opinion, it appears that he previously attempted to decrease the presence of Planned Parenthood by bending appellate court rules to encourage a wider (and possibly more conservative) array of justices to hear a case concerning Planned Parenthood. A final hint appears in his other writings; Gorsuch, in his book "The Future of Assisted Suicide and Euthanasia," argues against the legalization of physician-assisted suicide by asserting that all “human life” is “intrinsically valuable.” Although this rhetoric can be applied in a variety of ways, it mirrors arguments often made by anti-abortion advocates.
Other Issues:
Trump’s Immigration/Refugee Ban: Gorsuch’s record on immigration issues is thin. His notable rulings have related less to conflict between immigration laws and constitutional protections and more to the retroactive application of immigration laws. Even in the very few immigration cases he’s heard, he’s never had to issue an opinion on anything resembling the challenges being made to Trump’s ban. Based on his seemingly strong belief in the importance of maintaining freedom of religion and restricting government overreach, there is a good chance that he may be opposed to the ban. However, outside of concerns for citizens and people with green cards, it’s unclear whether he would consider one to constitutionally protected from immigration discrimination based on national origin. This remains one of the issues on which we know very little about Gorsuch.
Second Amendment: Unsurprisingly, Gorsuch strongly backs Second Amendment protections for private ownership of firearms.
The Dormant Commerce Clause: Both Gorsuch and Scalia are opponents of the concept that “the Constitution's Commerce Clause not only allows Congress to regulate interstate commerce but bans states from doing so,” upholding their strong beliefs in both states rights and federalism generally
The Chevron rule: The decision in Chevron v. NRDC created what the Washington Post describes as “the doctrine that provides that courts must defer to permissible agency interpretations of ambiguous statutory language.” Gorsuch is perhaps the highest-ranking member of the federal judiciary who believes that the rule needs to be overturned because of concerns over the power it grants to executive agencies and thus removes from the legislature and judiciary. According to Vox, this “could give plaintiffs — whether they’re businesses wanting laxer rules or advocacy groups wanting tougher ones — more say in the rulemaking process.”
One final question many people have for Gorsuch (and really all textualists) is what happens when the text of the Constitution or other case law is simply inconclusive? Gorsuch’s response is twofold: First, 0.014% of all cases heard by the federal judiciary each year are non-unanimous Supreme Court cases, so the question of lack of a single right answer applies in only the slimmest minority of cases. Second, even in those specific cases, appealing to outside morality is the incorrect answer. He argues that while, “at the end of the day, we may not be able to claim confidence that there’s a certain and single right answer to every case, but there’s no reason why we cannot make our best judgment depending on (and only on) conventional legal materials, relying on a sort of closed record if you will, without peeking to outside evidence.” For Gorsuch, this section of a 2016 lecture reveals his entire legal philosophy: to remain objective arbiters, judges must always be responsive to only the literal text and original meaning of the Constitution.
For further reading, I highly recommend this article from SCOTUSBlog and Gorsuch’s own lecture from last year several months after the passing of Justice Scalia, although all sources hyperlinked in this article are worth reading.