3 May, 2017
It is only Neil M. Gorsuch’s first month as an associate justice on the Supreme Court, but he is already showing just how similar his judicial philosophy is to that of his predecessor, the late Justice Antonin Scalia.
In several difficult criminal law cases, Gorsuch has asked sharp questions from the bench and cast one of his first votes to deny a stay of execution—moves that echo Scalia’s approach to the law.
The Death Penalty in Arkansas
First, in McGehee et al. v. Hutchinson, Gorsuch voted to deny several Arkansas death row inmates’ requests to halt their executions.
Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor would have granted their request. Breyer wrote a two-page dissent questioning “whether the death penalty is consistent with the Constitution” (he clearly believes it isn’t).
While the majority did not state their reasons for denying the inmates’ request, it seems clear that they relied, at least in part, on the reasoning set out by Scalia in his concurring opinion in Glossip v. Gross (2015), in which he wrote that “not once in the history of the American republic has this Court ever suggested the death penalty is categorically impermissible.”
“The reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates.”
Scalia continued, “The Fifth Amendment provides that ‘[n]o person shall be held to answer for a capital … crime, unless on a presentment or indictment of a grand jury,’ and that no person shall be ‘deprived of life … without due process of law.’”
The Washington Post describes votes on stays of execution as “a time when the responsibility of the role crystallizes.” In McGehee, Gorsuch held firm, silently adopting Scalia’s constitutionalist reasoning.
No ‘Linguistic Somersaults’
Second, Gorsuch demonstrated his adherence to textualism through some of the questions he posed to the advocates during oral argument in Maslenjak v. U.S.
At issue in the case is whether the government was justified in removing the U.S. citizenship of Divna Maslenjak, an ethnic Serb from modern Bosnia. Maslenjak, who came to the United States in 2000 and was subsequently naturalized as a citizen, was convicted of lying to a U.S. immigration official. During an interview in 1998, she told the immigration officer that she and her husband were seeking asylum because they feared persecution in Bosnia because her husband had evaded conscription into the Serbian army.
In reality, he had served as an officer in a Serbian militia unit which was subsequently accused of war crimes.
In 2006, Maslenjak falsely stated on an immigration form that she had never lied to an immigration officer, and was subsequently convicted of making false statements on a government document.
A key issue before the Court is whether that lie was “material” enough to affect the original immigration decision, which would, in turn, be sufficient to uphold her conviction and her subsequent denaturalization.
As Amy Howe writes at SCOTUSblog, “ruling for the government” in this case “would give U.S. officials boundless discretion to take away citizenship based on even very minor lies.”
In the midst of this high stakes argument, Gorsuch’s questions focused on one issue in particular: The text of the law itself.
The statute, Gorsuch noted, “doesn’t contain an express materiality provision,” and Gorsuch was concerned about having to do “a lot of linguistic somersaults to add” such a provision into the law.
That harkens back to Scalia’s dissenting opinion in King v. Burwell (2015). There, the U.S. Supreme Court held that the Affordable Care Act’s “tax credits are available to individuals in states that have a federal exchange.”
In signature prose, Scalia wrote that “[t]he somersaults of statutory interpretation” that the majority “performed (‘penalty’ means tax … ‘established by the state’ means not established by the state) will be cited by litigants endlessly, to the confusion of honest jurisprudence.”
The late Justice Antonin Scalia was known for his combination of colorful prose and staunch originalism. (Photo: Gary Fabiano/Pool via CNP/Newscom)
Gorsuch appears sympathetic to Scalia’s disapproval of “linguistic somersaults” and the idea that judges are empowered to rewrite laws that they may disagree with.
The Big Picture
Third, Gorsuch showed a keen awareness of how the Supreme Court’s rulings carry far-reaching implications for future cases in Weaver v. Massachusetts.
That case involved a man named Kentel Weaver, who in 2006 was convicted of unlicensed possession of a firearm and premeditated murder of 15-year-old Germaine Rucker. Weaver was 16 at the time of the murder. In 2011, he sought a new trial, claiming that his counsel was ineffective because they did not object to the courtroom being closed during jury empanelment, when the defendant, judge, and jury first meet. Weaver argued that this was a procedural irregularity that violated his Sixth Amendment right to a public trial.
But as Chief Justice John Roberts pointed out at oral argument, the reason the courtroom was closed was that it was full. Ninety members of the public were in attendance as prospective jurors, and they all needed seats.
Weaver objected to this reasoning, saying that while prospective jurors were seated, his mother and his other supporters weren’t able to enter the courtroom during the early stage of the proceedings.
At this point, Gorsuch entered the fray with a big picture question.
He asked whether a “triviality exception” might apply here, or whether the Court should consider the potential unintended consequences that can arise when it tries to prevent every injustice—no matter how small—by imposing new procedural requirements across the entire criminal justice system.
Gorsuch asked whether ruling for Weaver would create a “Professor Stuntz” problem, whereby in “perfecting procedure, we actually result in its denial…”
This reference was to the late Harvard criminal law professor, William J. Stuntz, who argued that by following the Warren Court’s “fetishization of so many formalistic procedures,” the criminal justice system is now overburdened by an excess of procedural technicalities at play.
Berkeley law professor Andrea Roth summed up Stuntz’s argument, saying that these rules “at best indirectly ensure fairness of trial and sentencing outcomes” but have “rendered trials too expensive” and complex for anyone but elite lawyers to tackle.
In turn, writes Roth, this “has driven prosecutors and lawmakers to seek ways to avoid trial and force pleas through draconian sentencing schemes, a skewed focus on easily detected urban drug crimes mostly committed by racial minorities, and ever-expanding substantive criminal law.”
Scalia worked to constrain some of the Warren Court’s excesses in this regard during his time on the Court.
In Hudson v. Michigan (2006), for example, Scalia, writing for the majority, refused to extend the “exclusionary rule” (which requires the suppression of incriminating evidence, notwithstanding the fact that a defendant may be guilty) to technical violations of “the knock-and-announce rule,” which establishes that, absent extenuating circumstances, police officers must knock on the door and announce their presence before entering a suspect’s home.
He also asserted, in a noteworthy University of Chicago Law Review article, that there is a “dichotomy between ‘general rule of law’ and ‘personal discretion to do justice’”—that is, to rule as a judge personally desires rather than as the law instructs—and that the latter may lead to “unfortunate practical consequences.”
So far, Gorsuch is modeling this Scalia-esque approach and honoring the rule of law.
This is the exact approach he espoused in a dissent in A.M. v. Holmes (2016) while sitting on the U.S. Court of Appeals for the Tenth Circuit. There, he wrote, “[a] judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels.”
A Fitting Successor to Scalia
Throughout his nomination and confirmation process, Heritage Foundation legal scholars noted Gorsuch’s striking similarities to Scalia, which include a shared sensitivity to over criminalization, textualism, and the separation of powers.
In these first few cases, Gorsuch is showing just how well he fits the Scalia mold of being a committed constitutionalist and textualist on the High Court.