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04/12/2018

Justice Gorsuch, Mainstreaming Originalism?
Michael Ramsey

There have been many reports in the popular press inspired by Justice Gorsuch's completion of his first year at the Court.  In general they seem positive, and in particular present his originalism as a notable but not alarming aspect of his judging.  This remarkably even-handed report by Ariane de Vogue at CNN is an illustration: Trump's originalist, Neil Gorsuch, finds his place.  It begins:

Neil Gorsuch slipped out his Colorado home a year ago to race to Washington and become President Donald Trump's first pick in a bid to reshape the judiciary.

He had a glistening resume and a decade of experience on the federal bench, but a few problems: He had only packed two ties, one shirt was frayed and about 70 senators were waiting to meet him.
 
"He packed quickly and went to Washington for the announcement, but he wasn't prepared for how fast things would move," said Michael Trent, one of Gorsuch's childhood friends who rushed out to buy the future justice some extra shirts.
 
As an appeals court judge, Gorsuch did not have an extensive wardrobe. "And if his shirts were frayed nobody noticed because he was wearing a robe," Trent said, laughing.
 
But more substantively:
 
"We are appointing judges who will interpret the Constitution as written," the President said [at the State of the Union address]. It was all that judicial conservatives - who seek to fill the benches with judges in the mold of the late Justice Antonin Scalia -- could hope for. Like Scalia, Gorsuch believes the Constitution should be interpreted based on its original public meaning. In legalese, it's called originalism, or textualism.
 
And this:
 
Indeed, at oral arguments, Gorsuch's questions suggest that he sees the law at times through a Scalian lens. One of the biggest issues of the term, for example, concerns partisan gerrymandering. The justices appear deeply divided about whether they can or should come up with a standard to decide when politicians go too far in using political motives to draw congressional districts. In 2004, Scalia said that courts should stay out.
 
At oral arguments in a case challenging Republican-drawn maps in Wisconsin, Gorsuch seemed to echo that sentiment.  "Maybe we can just for a second, talk about the arcane matter, the Constitution," Gorsuch said to a lawyer representing those challenging the Wisconsin maps. "Where exactly do we get authority to revise state legislative lines?"
 
Professor Rick Hasen, of the University of California, Irvine School of Law, who has penned a new book on Scalia, says the exchange highlights Gorsuch's fidelity to originalism. "Like Scalia," Hasen said, Gorsuch believes "other methodologies would unconstitutionally turn judges into legislators."
 
And further:
 
In another case, Gorsuch hinted that he might side with the liberals in a dispute concerning a provision of law that requires the mandatory removal of some immigrants who have committed crimes.
 
But even in agreeing with liberals, he could be in line with Scalia's jurisprudence. Scalia did tend to side with the left side of the bench when it came to the vagueness of statutes used to convict criminal defendants.
 
And there is some indication that Gorsuch has independent views when it comes to the 4th Amendment.
 
The article quotes some critical law professors and politicians, but it's mostly snark-free and generally depicts the Justice as an interesting and engaging character.  In conclusion:
 
In 2016, when he was still a judge on the 10th Circuit, Gorsuch spoke more plainly, this time echoing Socrates.
 
In a speech, he said that his model as a judge was to "hear courteously, answer wisely, consider soberly, and decide impartially."
 
In the coming weeks and months, his critics and his supporters will get their first full glimpse of those deliberations.
 
Yes, that's pretty bland.  But that's my point.  Perhaps the role of the second-generation originalist Justice is to be mainstream, as Scalia never was.