On January 31, 2017, President Trump announced that he would nominate Judge Neil Gorsuch of the 10th Circuit Court of Appeals to fill the late Justice Scalia’s seat on the Supreme Court. The empty ninth seat of the Court has been a contentious topic since Justice Scalia’s sudden death last February. Republicans let out a sigh of relief when President Trump won the presidential election in November, confident that he would nominate an originalist Justice to continue the work of Justice Scalia. If confirmed, the Court’s ideological breakdown would become four conservatives committed to originalism at various degrees, four liberals that view what they call the “living Constitution” in often similar but occasionally conflicting ways, and one swing vote.
Justice Scalia is a legend of the Court and an idol to originalists and textualists. His 30 years on the Court can be characterized by ardent originalism, consistent textualism, and a lucid and witty writing style. To say a president can completely fill the void Justice Scalia left on the Court with another justice dramatically underestimates the intellectual gravitas of such a man.
Luckily, Judge Neil Gorsuch is the next best thing. Judge Gorsuch has often been considered a second coming of Justice Scalia because of their nearly identical judicial beliefs and comparable writing styles. On complicated constitutional issues, such as religious freedom, criminal law, and the Commerce Clause, Judge Gorsuch agrees with Justice Scalia down to the dots of his I’s and the crosses on his T’s. Administrative law is one of the only areas where Judge Gorsuch’s beliefs stray from Justice Scalia’s. Overall, Judge Gorsuch adamantly subscribes to the judicial philosophies of originalism and textualism, ideas for which Justice Scalia was the figurehead.
The First Amendment of the Constitution prohibits the establishment of a national religion and allows for the free exercise of all religions. As one of the most fundamental values at the core of the nation, religion is one of the most controversial issues and is commonly questioned before the Court. Judge Gorsuch has judicial experience in this area. His circuit opinions on religious liberties have centered around the notion that public displays of religion are not an infringement of the Establishment Clause. Cases like American Atheists Inc. v. Davenport and Green v. Haskell County Board of Commissioners prove that Judge Gorsuch finds no problem with these religious displays. Justice Scalia echoed these views in his concurrence in Pleasant Grove City, Utah v. Summum, a case that arose from the decision of the 10th Circuit.
Judge Gorsuch approaches criminal law cases in the same manner as Justice Scalia. Here he applies the doctrine of textualism, looking solely at the text of criminal statutes to protect potentially innocent people from an assumption of guilt. His most notable case is US v. Games-Perez where he argued that the Court needed to consider only the text of the federal criminal statute to understand the meaning of “knowing possession of a firearm by a felon.” His decision in the case truly displays his commitment: Judge Gorsuch found that, if attempting to apply felony restrictions on firearm purchases, the government must prove that a felon knows he is a felon. Like Justice Scalia, Judge Gorsuch actively tried to remedy the criminal law system to ensure that innocent people were not incarcerated. Judge Gorsuch and Justice Scalia have both made prosecution standards more stringent so that innocent parties were saved from jail time.
The final major constitutional issue on which Judge Gorsuch aligns with Justice Scalia is the application of the Commerce Clause. The Commerce Clause is arguably the most controversial clause in the history of the Constitution. Judges and justices have recently been deciding cases about the “dormant commerce clause.” Also known as the “negative commerce clause,” this idea states that while Congress is granted the enumerated power to regulate interstate commerce, states are limited in passing legislation that burdens interstate commerce, even when the federal government has not passed a relevant law. Justice Scalia used a dissenting opinion in Comptroller v. Wynne to show his textualist discontent with the negative commerce clause because it is not written in the Constitution. Judge Gorsuch showed similar distrust with the doctrine in his decision in Energy and Environment Legal Institute v. Epel. Here he stated that the dormant commerce clause is absent from the text of the Constitution, making it an invalid issue on which to base a legal argument.
On one issue, though, there is a discrepancy between the beliefs of Justice Scalia and Judge Gorsuch. Chevron USA, Inc. v. National Resources Defense Council, Inc. created a legal doctrine called “Chevron deference.” This idea allowed for the interpretive decisions of administrative or regulatory agencies to stand in situations of statutory ambiguity. Essentially, the Court would simply defer to the agency’s judgment if a controversy came before them regarding the application of unclear laws or rules. Justice Scalia understood that agencies needed flexibility in their execution of federal statutes to adapt to the changing opinion of presidents or other conditions. Judge Gorsuch was opposed to the idea that a regulatory agency could strip the power of statutory interpretation from the courts. In Gutierrez-Brizuela v. Lynch, Judge Gorsuch wrote both the majority opinion and a concurring opinion to promote his argument that it is the job of the courts to interpret congressional statutes, not regulatory agencies.
After Justice Scalia’s death, Judge Gorsuch gave a speech at Case Western Reserve Law School, showing his commitment to one of Justice Scalia’s chief principles: judges are not meant to legislate from the bench. He said, “…the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society.” He continued to point out that a good judge will look backward to understand what the writers of that provision would have understood the text to mean. This speech was a clear tribute to the dedicated work of Justice Scalia and to originalism as a judicial decision-making philosophy.
Because of their parallel views on the role of the government and application of constitutional provisions, as well as their clear and comprehensible writing styles, Judge Gorsuch is a logical choice for any Republican president that hopes to replace Justice Scalia. Judge Gorsuch will be tasked with continuing the legacy of Justice Scalia by protecting the text of the Constitution. His judicial experience proves that he is ready for the job.