New vs. Old, Stubborn vs. Expedient
New vs. Old, Stubborn vs. Expedient
the issue was “a constitutional question that deserve[d] more notice.”36 Gorsuch expressed concerns with the power that the Attorney General had to determine the standards for which sex offenders convicted prior to the Sex Offender Registration and Notification Act would be required to register their faces and locations with the program.37 Yet again, Gorsuch proved that he is willing to put principle above practicality. In Casey, Gorsuch showed his dedication to principle despite the practical consequences of his decision, deferring to the Garcetti ruling and therefore dismissing parts of Casey’s complaint despite acknowledging she acted appropriately and was punished. By upholding the other part of the complaint, Gorsuch also proved that he was committed to exploring nuance and expanding rights where precedent allows. In Molina and Deiter, Gorsuch again proved his deference to precedent, even on issues for which coming to another decision would have been politically desirable. Then, in Nichols, Gorsuch gave the clearest example of his willingness to value theoretical principles over the consequences of his decisions. All four of these decisions are in line with soft, new originalist thinking, which values principle and nonpartisanship, as well as being open to expanding certain basic rights, such as free speech. Further, Gorsuch’s continuing deference to precedent distinguishes him from other originalists and shows that Gorsuch is a true soft originalist, using multiple methods of judicial reasoning when weighing the merits of a case. B. U.S. Supreme Court Associate Justice How did Justice Gorsuch’s judicial philosophy translate to the highest court in the land? This section analyzes which parts of Gorsuch’s decision-making methodology changed or persisted during his first three years on the bench. Further, the political and practical implications of his decisions are examined. One of the first cases in which Gorsuch demonstrated that he was not afraid to go against the grain was Sveen v. Melin, a case regarding the validity of a life insurance policy, held by Sveen,38 in which an ex-spouse, Melin, was the beneficiary.39 The policy in question was purchased before Minnesota’s so-called revocation-ondivorce law, and, thus, Melin argued that retroactively applying the law would violate the Contracts Clause. The Court reached an 8-1 decision in favor of Sveen.40 Gorsuch was the sole dissenter, citing part of the Appellate Court decision saying, “the Contracts Clause … guarantees people the right to ‘rely on the law . . . as it existed when the[ir] contracts were made’” and, thus, cannot be applied retroactively.41 All eight other Justices found that interpretation to be too strict, including Justice Clarence Thomas, an occasional hard originalist.42 A year later, Gorsuch wrote the majority opinion for U.S. v. Haymond in which he and the four traditionally liberal Justices ruled that mandatory minimum sentencing based on probation violations violated a defendant’s Fifth and Sixth Amendment rights.43 Here, Gorsuch displayed his ambivalence to the political optics of a case, breaking ranks with conservative colleagues and even other originalists44 to join four liberals in giving leniency to a man convicted of possessing child pornography.45 Another high-profile case in which Gorsuch reached across the metaphorical aisle was McGirt v. Oklahoma. McGirt claimed that as a member of the Muscogee (Creek) Nation, any crimes he committed on Muscogee land were prosecutable only by the federal government, not by the state of Oklahoma, because of the
36 37 38 39 40 41 42 43 44
Id. Id. His two children, listed as secondary beneficiaries on the policy, were the petitioners. Sveen v. Melin, 138 S. Ct. 1815 (2018). Id. Id. Sunstein, supra note 21. United States v. Haymond, 139 S. Ct. 2369 (2019). The other potential originalist justices on the bench were Justices Thomas and Kavanaugh. Whether or not Justice Kavanaugh is an originalist is highly debatable (most experts believe he falls somewhere around the line of “weak originalist”), but even staunch originalists like Justice Thomas found themselves on the other side of this case. 45 Haymond, 139 S. Ct. at 2369.
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Indian Major Crimes Act.46 Gorsuch authored the 5-4 majority opinion, which held that since Congress never broke its treaty to the Muscogee people, it ought to still be considered a reservation, even 154 years later.47 Here again, Gorsuch grounded his argument in the legal text presented to him and followed the conclusion he gained from that text regardless of other external factors. In his transition from judge to justice, little appears to have changed in Gorsuch’s judicial decisionmaking process. Gorsuch has largely stayed true to his Circuit Court ideals of the importance of principle and precedent. Further, Gorsuch is the member of the bench who stays the least within his prescribed political leanings, and analysis has shown that (following the retirement of Justice Anthony Kennedy) he is the Justice most likely to be a swing vote.48 Even though Justice Kavanaugh and Chief Justice Roberts are more moderate than Gorsuch on paper, according to FiveThirtyEight analyst Amelia Thomson-DeVeaux in the 2018-19 term, “Gorsuch was more of a loose cannon. He joined the liberals in more closely divided cases than any of his conservative colleagues.”49 This dedication to nonpartisanship aligns with the philosophy of new originalism. However, it is impossible to put a legal mind so squarely into one box. Gorsuch’s reliance on precedent, most often when interpreting statutes, separates him from other originalists who typically disregard precedent that they do not think accurately interprets texts.50 On the other hand, Gorsuch’s dissent in Sveen hints at a level of old and hard originalism that has not appeared in his other rulings examined in this paper. His willingness to ignore what others consider as common sense in favor of the letter of the law reads as more in line with the rule-oriented approach of old originalism, and his inability to use another method of judicial reasoning in that case shows a trend towards hard originalism. Further, many have been quick to point out how Justice Gorsuch’s views have fluctuated over the years. Respected attorney and author of a book about Gorsuch51 David Dorsen notes in a Washington Post op-ed that Gorsuch “relie[d] mostly on moral and pragmatic arguments, not on originalism” in his 2006 book, The Future of Assisted Suicide and Euthanasia.52 Ironically, Dorsen argues that most of Gorsuch’s concerns regarding sensitive topics like euthanasia surrounded potential unintended consequences rather than having any basis in the 53 law. However, by 2016, Gorsuch’s writings reflected “uncompromising originalism.”54 It is entirely possible that Gorsuch’s judicial philosophy naturally evolved over 10 years as a judge, but he called himself an originalist back in 2006 while simultaneously expressing legal opinions based on consequences. Even recently, Gorsuch has proposed seemingly anti-originalist ideas, for example, suggesting that Fourth Amendment protections should be expanded.55 Perhaps Thomson-DeVeaux put it best when she labeled Gorsuch a loose cannon:56 he is very dedicated to his judicial philosophy, but it is anybody’s guess just what comprises that philosophy.
46 47 48
McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). Id. Amelia Thomson-DeVeaux, The Supreme Court Might Have Three Swing Justices Now, FiveThirtyEight (July 2, 2019), https://fivethirtyeight.com/features/the-supreme-court-might-have-three-swing-justices-now/. 49 Id. 50 David A. Strauss, Originalism and Precedent: Why Conservatives Shouldn’t Be Originalists, 31 Harv. J.L. & Pub. Pol’y 969 (2008). 51 Dorsen’s book is entitled “The Unexpected Scalia: A Conservative Justice’s Liberal Opinions.” 52 David M. Dorsen, Opinion | Is Gorsuch an Originalist? Not so Fast, Wash. Po. (March 17, 2017), https:// www.washingtonpost.com/opinions/is-gorsuch-an-originalist-not-so-fast/2017/03/17/88352dbe-0b21-11e7-b77c0047d15a24e0_story.html. 53 Id. 54 Id. 55 Nicholas Kahn-Fogel, Property, Privacy, and Justice Gorsuch’s Expansive Fourth Amendment Originalism, 43 Harv. J.L. & Pub. Pol’y 425, 428-9 (2020). 56 Thomson-DeVeaux, supra note 48.
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