Neil Gorsuch Is Channeling the Ghost of Scalia
(Bloomberg Opinion) -- Neil Gorsuch has big ambitions.
Every Supreme Court justice wants to do good work, write good opinions and influence the trajectory of American law. Justice Gorsuch wants more: intellectual leadership of the conservative legal movement. That would make him the heir to the late Justice Antonin Scalia, whom he replaced in 2017 after the Senate refused to vote on President Barack Obama’s nomination of Judge Merrick Garland.
Gorsuch’s aspiration to intellectual leadership fairly bursts from his votes and opinions and seems to have formed early in his career. He might accomplish it if emerging splits within the close-knit family of conservative legal thinkers break his way.
In practice, this means Gorsuch decides cases a little differently from his colleagues, including the two others appointed by former President Donald Trump, Justices Brett Kavanaugh and Amy Coney Barrett. In every case, no matter how small or large, he takes pains to shape a consistent judicial philosophy that defines the conservative position.
The results so far have been noteworthy. Gorsuch has delivered some extremely conservative opinions on religious liberty and other issues. But he also authored the landmark opinion Bostock v. Clayton County, which conferred workplace anti-discrimination rights on gay and transgender people and was lauded by liberals and condemned by many conservatives.
Disdain for Precedent
Gorsuch’s trademark is that he is uninterested in precedent, preferring logical coherence to adherence to what the court has done in the past. He is all but certain to side with the other conservatives intent on using an upcoming Mississippi case to overturn the 48-year-old right to an abortion. Yet he may have other surprises like the Bostock opinion in store.
Perhaps the earliest sign of Gorsuch’s plans to achieve conservative intellectual leadership was his decision to pursue and receive a doctorate from Oxford University. It makes Gorsuch, remarkably, the first justice in the history of the court to have earned one. (The law-school J.D. degree isn’t a doctorate, despite standing for “Juris Doctor.” It used to be called an LL.B. — for Bachelor of Laws — but was rebranded in the 1960s at the instigation of the American Bar Association.)
Not only is the fact of Gorsuch’s doctorate telling, the way he got it is, too. Gorsuch went to Columbia University for college and then straight to Harvard Law School, graduating in 1991. He then spent a year clerking for conservative stalwart Judge David Sentelle on the U.S. Court of Appeals for the District of Columbia Circuit. So far, so normal for a smart scion of the conservative aristocracy. (Gorsuch’s mother, Anne Burford Gorsuch, was head of President Ronald Reagan’s Environmental Protection Agency.)
Where things got unusual was that Gorsuch applied for and won a Marshall Scholarship to study at Oxford. The Marshall Scholarship website lists him as part of the class of 1992, which means he applied in 1991, while clerking for Sentelle. That’s rare. Marshall scholars usually go to study in the U.K. right out of college, and it’s almost unheard of for a bright lawyer already in a prestigious clerkship to seek to study abroad. The conventional wisdom would be that such a stint would be a detour on the fast track to legal success. The application marked Gorsuch as wanting to deepen his intellectual grasp of legal issues even after graduating from law school and clerking.
The way Gorsuch managed the potential threat to his path of legal advancement is that he spent only one year in Oxford instead of the usual two or three. (Either he spent most of his time in the library or I did, because I was there at the same time and hung out with many Americans who were headed for legal careers, and yet don’t recall meeting him.) Then he came back to the U.S. in 1993 to clerk for retired Justice Byron White at the Supreme Court, a job that got him assigned to work with Justice Anthony Kennedy, for whom Kavanaugh was clerking the same year.
After his Supreme Court clerkship, Gorsuch joined a Washington law firm, where he spent the next decade and made partner. Yet somehow he found time to write a dissertation on assisted suicide and euthanasia, submitting it in 2004. He did it in the law faculty at Oxford under the direction of John Finnis, the world’s leading authority on natural law — the idea that there are rights and requirements shared by all and derived simply from being human, not from society’s positive laws.
The dissertation was written to be a book, and sure enough, it was published by Princeton University Press in 2006. Most dissertations get substantially reworked before they can be published. Gorsuch’s was published essentially in verbatim form, right down to the table of contents. In the acknowledgments, he thanked the conservative Princeton Professor Robert George, himself a prominent exponent of natural law and a former student of Finnis, who must have recommended the manuscript to the press.
The thesis is well done, and clearly the work of someone trying to craft a place in conservative legal thought. In the most original part, Gorsuch advanced what he called a “secular moral argument” against euthanasia and assisted suicide, namely that human life is innately valuable and that private persons — as opposed to the state — should never be able to take life.
Onto the Bench
This was, in essence, an argument based on natural law, and Gorsuch cited his adviser Finnis’s influential 1980 book, “Natural Law and Natural Rights.” But Gorsuch was careful not to call his own presentation a natural-law argument. He must have been mindful that Justice Clarence Thomas faced scrutiny in his 1991 confirmation hearings for his adherence to a species of natural law. (Lest you think the question was obscure, check out this article under the byline of then-Senator Joe Biden highlighting differences between his own natural-law views and those he thought Thomas might hold.)
Just about the only reason that a high-flying young law firm partner would complete a doctorate would be ambition to become a conservative intellectual leader. Sure enough, in 2006, after spending a year in the Justice Department, Gorsuch was nominated to the U.S. Court of Appeals for the 10th Circuit in Denver, where he served until Trump (with an assist from Senate Republican Leader Mitch McConnell) put him on the Supreme Court.
As a justice, Gorsuch has doubled down on the ambition of intellectual leadership and the goal of inheriting Scalia’s mantle. Above all, his bid for leadership seems to be based on the principle of logical consistency.
Scalia presented his judicial philosophy differently from the way most justices have done it, insisting on logical coherence nearly all the time. According to most justices who have spoken directly about their decision-making process, going all the way back to Justice Benjamin Cardozo in the 1930s, making sense of the Constitution and the laws is a complicated process of balancing text, history, precedent and interpretive preferences.
For Scalia, in contrast, the judge’s job was supposed to be almost automatic. Personal preferences or beliefs were deemed irrelevant. The judge’s job, as he saw it, is to follow the text of the law and the Constitution — nothing more.
Gorsuch’s bid for consistency was most visible in his Bostock opinion. There, he said he was following Scalia’s textualist approach to statutory interpretation, obeying the words of the law and ignoring context that most judges would take into account.
The case involved interpreting Title VII of the Civil Rights Act of 1964, which outlaws discrimination on the basis of sex. Gorsuch concluded that it must extend to discrimination against gay or transgender people, which, logically speaking, treats people differently on the basis of their sex. Justice Samuel Alito vociferously dissented, claiming himself to be speaking for the ghost of Scalia and accusing Gorsuch of flying textualism as a false flag. There was no legal precedent for the Bostock outcome — that’s why the case was so important.
It’s no exaggeration to say that the Bostock opinion put Gorsuch on the map, intellectually speaking. It enraged conservatives like Senator Josh Hawley of Missouri, who called the opinion “the end of the conservative legal movement.” And it forced liberals to take Gorsuch seriously, precisely because nobody thinks that Gorsuch is by political preference a liberal on gay or transgender rights.
In religious-liberty cases, too, Gorsuch has put logical consistency ahead of precedent. In a series of opinions issued during the height of the Covid-19 epidemic, he argued that the constitutional guarantee of the free exercise of religion must be understood as a most-favored-nation policy for religious actors seeking exemptions from otherwise valid laws.
Under this approach, all the court needs to do is ask whether anyone else is receiving an exemption. If exemptions exist, religious actors get them, too; if a liquor store can be open for business, so can a church. The different public-health implications don’t matter — the guiding principle is consistency.
The Chevron Doctrine
Logical consistency often clashes with judicial precedent, and Gorsuch has long made his disrespect for precedent clear. He has argued for dismantling the administrative state, which has evolved into a kind of fourth branch of government that was not contemplated by the Constitution’s framers. Even Scalia, who was a teacher of administrative law before becoming a judge, never went that far. He famously defended one of the bulwarks of administrative law, the principle that judges should not intercede when government agencies interpret ambiguous statutes reasonably. Gorsuch wants to overturn that principle, notwithstanding that it is embodied in a well-established 1984 precedent, Chevron v. NRDC.
Given the short shrift that Gorsuch affords to precedent, not to mention his natural-law inclinations and his argument against euthanasia and assisted suicide, Gorsuch will almost surely vote to overturn the 1973 abortion-rights precedent Roe v. Wade. That vote will rehabilitate him with hard-line conservatives, whether the court ultimately joins him or not.
But there will be other issues where Gorsuch’s commitment to consistency may lead him into surprising philosophical neighborhoods, as in the Bostock case. Gorsuch’s activism means he is open to future arguments for consistency that liberals will doubtless direct toward him.
Whether Gorsuch’s ambition to achieve conservative leadership succeeds depends a lot on whether other conservatives prefer his insistence on consistency to deference to conservative outcomes. Justice Barrett seems to be less consistency-obsessed than Gorsuch. She is also a credible, competing heir to Scalia, having clerked for him and written several academic articles about his legacy.
In lawyer’s terms, Barrett is a more subtle doctrinalist than Gorsuch. That means she can put herself into a complex area of legal doctrine and craft a creative solution from existing legal materials. (She has already hinted as much in an important religious-liberty opinion that sought a more subtle approach than that advocated by Gorsuch.) In short, Barrett is a lawyer’s lawyer.
Gorsuch, by contrast, wants to tear down the doctrinal edifice and replace it with something new and logically consistent. In this sense he is a good son of Reagan-era conservatism, which talked the talk of revolution.
It remains to be seen whether today’s young conservative legal intellectuals, who will be the ultimate king or queen makers, prefer Gorsuch’s boldness and open ambition or Barrett’s more lawyerly command of what has become a generation-old conservative legal tradition.
Scalia himself had elements of both Gorsuch and Barrett in him. He was never the perfectly consistent ideologue depicted by critics and supporters alike. The coming debate between Gorsuch and Barrett about Scalia’s legacy will shape the future of conservative jurisprudence. And so long as conservatives control the court, that means it will determine the direction of constitutional law itself.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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