Assuming Senate Democrats cannot torpedo his confirmation, Neil Gorsuch will be a welcome addition to a 4-4 Supreme Court often divided over questions of policing, law enforcement, and criminal justice.
The Court’s four liberals—Justices Ginsberg, Breyer, Sotomayor and Kagan too often think of themselves as super legislators rather than judges; when they do their opinions reflect their personal proclivities rather than the strict letter of the law. Not so Neil Gorsuch, who prides himself on deciding cases based on the law rather than the outcome he would prefer. In his remarks at the White House, when President Trump nominated him, he said that “A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.”
Gorsuch may not have been accusing the four SCOTUS liberals of being bad judges—he is too polite to do that—but his remarks set him far apart from the ideal liberal judge, who cares little about what the law says, but instead cares a lot about the outcome and its impact on his favorite issues and perceived victims.
Liberals’ view of judging was confirmed in a letter to the Senate Judiciary Committee released this week, when some 100 liberal organizations predictably demanded that Gorsuch not be confirmed because he is not sufficiently sympathetic to “workers’ rights, immigration, women’s health, LGBT rights, police misconduct, students with disabilities, corporate bias, money in politics, environmental protection and voting rights.” Which is exactly Gorsuch’s point: treat everybody equally under the law, regardless of who they are, and don’t go beyond what the written law provides.
A review of opinions Gorsuch as written or joined while on the 10th Circuit Court of Appeals in Denver, together with speeches he has given, indicates that as a Supreme Court justice, he would likely be admired by the law enforcement community. Not because he is “pro-cop” or “anti-criminal offender,” but because he would be “pro-law.” In other words, law enforcement will likely approve of his jurisprudence more for what he is not than what he is—and what he is not is why the liberals don’t think he should be confirmed. That is, he rules predictably, according to the law, rather than trying to favor those the liberals think need an advocate.
That is also not to say that he will be a knee-jerk, inalterably strident lock-em-up-and-throw-the-key-away justice. His Tenth Circuit opinions include cases where he ruled in favor of police officers, and cases where he ruled against them who, for whatever reason, deserved being ruled against.
First, Gorsuch believes that there are far too many laws—5,000 or so “with hundreds of new statutory crimes inked every few years,” as he told the Federalist Society in 2013, which, he said “does not begin to count the thousands of additional regulatory crimes buried in the federal register. There are so many crimes cowled in the numbering fine print of those pages that scholars actually debate their number.” Reform of the criminal code is a job for Congress, not the Court, but intelligent critique from a thoughtful Justice might inspire somebody on the Hill to get started with the project.
Gorsuch’s critique of the criminal justice system seems confined to the above point rather than the left’s view that the system is laden with racism and that the police tend to disproportionately arrest minorities, the poor and minor drug offenders, resulting in what liberals refer to as “mass incarceration.”
It is on this point that the left will focus its opposition to his confirmation, among others. In an early critique of his record, for example, People for the American Way wrote that “at a time when the abuses of our criminal justice system are becoming a national crisis, we cannot confirm a justice who does not understand the role of the Supreme Court to protect the most vulnerable among us.” Gorsuch may be bad news for People for the American Way, but he is good news for law enforcement.
Second, Gorsuch has a solid record on use-of-force cases, an issue often addressed by the courts; he generally, but not always, takes a pro-law enforcement position.
In a 2013 case, he sided in the majority in a 2-1 split, finding the use of a Taser resulting in the death of an offender was a reasonable use of force under the circumstances. In an earlier case, in 2006, Gorsuch, in a dissent in an en banc civil use-of-force case against an officer, in which he was joined by four other judges, asked whether any use of force, no matter how slight, might result in a finding that the force was excessive. But by no means did he always rule on the side of the police—in at least two other cases, he found the use of force was excessive and that the officers in question were not entitled to qualified immunity. In another widely-reported case involving a seventh-grade kid who kept his class amused by forcing air into his stomach and producing loud burps—much to the annoyance of his teacher—Gorsuch dissented from the ruling, finding the police were immune from a civil suit when they arrested and detained him, writing that the teacher went overboard by failing to properly discipline the child and had him arrested by police.
A 2012 case is a good indicator of Gorsuch’s strong conviction that criminal laws should not be interpreted in such a way as to jeopardize innocent conduct, just because that conduct can be squeezed between the words of a statute. The case in question involved a felon charged with possessing a gun in violation of a statute which prohibits the “knowing” possession of a firearm by a felon. Gorsuch, in his opinion, reminds us that plenty of minor crimes may technically involve felony convictions even if no jail time is included, so that the convicted defendant may not know he was guilty of a felony. “There can be fewer graver injustices,” wrote Gorsuch, “in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land. Yet that is what Capps (the precedent relied on by the prosecutor) permits, excusing the government from proving an essential element of the crime Congress recognized.”
Even if Gorsuch’s narrow reading of the criminal law is sometimes more favorable to the criminal defendant than the prosecutor, those in the criminal justice and law enforcement communities will find his approach a refreshing, and consistent, change from the liberal view that the law should be read more as the judge wishes it had been written, or even by finding some obscure reasoning in the legislative history, or a comment from a member of the legislature that enacted it, giving it a broader interpretation than the written words.
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