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Neil Gorsuch’s Good Start

eye on the news

Neil Gorsuch’s Good Start

In his short time on the Supreme Court, the new justice has already found his voice. June 27, 2017
Politics and law

Neil Gorsuch has spent only a fraction of a term as a Supreme Court justice, but few justices have had a more promising start. He has shown himself a careful textualist in reading statutes, a serious originalist in interpreting the Constitution, and an adherent of judicial restraint—and he has done all this with an engaging style that will allow him to reach over the heads of Court watchers and critics to the people. He seems an ideal schoolmaster for the American republic—a jurist whose every opinion is a lucid primer on the civics of our governance.

His first majority opinion in Henson v. Santander Consumer USA was a superb exercise in meticulous analysis of statutory text. The question at hand was whether a law designed to regulate debt collectors applied to a bank that had a bought a debt and tried to collect on it. By its terms, the statute covers those “who regularly collect debts . . . owed or due . . . another.” The bank argued that it was collecting the debt of its own, not of another, since it had purchased the debt. The debtor seized on the past tense of the term “owed” and contended that the debt was another’s because it had been previously “owed” to the party from which the bank bought it. Gorsuch showed the debtor’s argument did not follow from ordinary language because the past tense is often used to describe the present state of a thing, as when one refers to “burnt toast or a fallen branch.” Moreover, he observed that the word “due” was obviously meant only to cover debt that was currently due. Thus, Gorsuch held that to rule for the debtor “we would have to suppose Congress set two words cheek by jowl in the same phrase but meant them to speak to entirely different periods of time. All without leaving any clue.”

His first concurrence, written in Maslenjak v. United States, objected to the majority opinion in the case because it went further than necessary. Here, the issue was whether a statute that made it a crime to lie during a naturalization proceeding covered only lies that caused the government to grant citizenship. Gorsuch agreed with the majority that causation was required, and thus that the lower court must be reversed because of a jury instruction that did not require such proof. But he complained that the Court’s majority then proceeded to craft instructions on the contours of the jury instruction on causation. Gorsuch correctly argued that the better course was to permit lower courts to decide on these details after briefing on the precise questions. The essence of judicial restraint is judicial modesty: the Supreme Court should decide no more than is strictly necessary because it is likely to make mistakes on matters that are not directly before it.

Gorsuch also signaled that he will be an originalist and a strong ally of Justice Clarence Thomas. In Weaver v. Massachusetts, in which a majority of the Court assumed that the right to a public trial extends to jury selection, Gorsuch joined Thomas in demanding that that assumption be tested against the original understanding in a future case. In dissent from the Court’s refusal in Peruta v. California to take a case on the Second Amendment, Gorsuch again joined Thomas in arguing that the lower court had ignored the history surrounding the amendment, which shows that the right to bear arms includes the right to carry them publicly.

Gorsuch has a powerful legal pen. For instance, in noting that Congress might well revisit the debt-collection statute, he wrote: “Constant competition between constable and quarry, regulator and regulated, can come as no surprise in our changing world. But neither should the proper role of the judiciary in that process—to apply, not amend, the work of the People’s representatives.”

Gorsuch’s distinctive style suits our time, as Justice Antonin Scalia’s style did his. When Scalia joined the Court, originalism and textualism were jurisprudences at the margin of respectability in mainstream legal and academic thought. Scalia’s voice needed to be loud and sometimes sarcastic and angry enough to get a hearing for these ideas against entrenched conventional wisdom. But now textualism and originalism have become part of the mainstream. And while Gorsuch, like Scalia, can turn a phrase to command attention, his measured and modest tone will help these approaches gain even wider respect. Gorsuch is the model justice that Scalia made possible.

Photo by Alex Wong/Getty Images

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