Judge Neil Gorsuch is one of the most accomplished and respected legal minds on the federal bench.
A graduate of Columbia, Oxford and a classmate of President Barack Obama at Harvard Law School, he has served on the United States Court of Appeals for the 10th Circuit since 2006 and last week was nominated to replace Justice Antonin Scalia on the Supreme Court.
For many who followed President Donald Trump’s vetting process for the open seat, this decision was not very surprising.
Trump and his advisors knew that it would be extremely difficult — if not impossible — for Democrats to question his credentials, given Gorsuch’s illustrious educational background and his reputation for being tremendously friendly, collegial and professional in his work. They knew he would be hard to contest, even despite the fact that he has reliably ruled in favor of Republican interests for most of his tenure as a judge.
Gorsuch is a self-described textualist in statutory interpretation and an originalist when interpreting the Constitution, which is also no surprise given that Justice Scalia employed the same interpretive methodologies when he sat on the Court.
However, Gorsuch differs from Scalia in many important ways and if confirmed, he has the potential to profoundly change the Supreme Court — and indeed American legal culture at-large — for a generation.
As Jeffrey Rosen described in a piece for the Atlantic recently, Gorsuch is much more of a “Jeffersonian” than a “Hamiltonian” in terms of how he thinks about the law and the Constitution.
Rather than allow the national government to exercise broad, discretionary power (as Hamilton desired) Gorsuch instead fits the mold of a Jeffersonian, meaning that he calls for strictly construing the enumerated limits of power to the president and the federal government in order to protect individual liberty.
As one could imagine, Gorsuch has expressed sentiments that the post-New Deal regulatory state is far too expansive and he seems to question the legitimacy of many federal agencies and the power that they exert.
Yet while many do share his opinion that federal overreach needs to be curtailed, it is likely that few would pursue the task of dismantling these regulatory agencies and the entire legal foundations of them with as much vigor as Gorsuch would if he were confirmed to the Supreme Court.
However, all is not lost for progressives who are worried about the Supreme Court’s potential shift to the right.
Even though it is possible that some of the regulatory state could be scaled back if Gorsuch were confirmed, we can still have high confidence that he would not allow for the executive to exercise power that would patently threaten constitutional standards.
Gorsuch has repeatedly stated that it is essential for the executive to stay true to his specifically enumerated powers, so Trump’s ability to pass far-reaching executive orders that would give him extensive lawmaking capacity during his term would certainly not be permitted by Gorsuch, who would insist that Congress should retain that power.
Finally, an important fact about Gorsuch that many forget to mention is how well he knows Justice Anthony Kennedy.
Having clerked for Kennedy in the early 1990’s, Gorsuch is very familiar with the way that Kennedy approaches the law and how he thinks about the toughest legal questions, and one could certainly envision a scenario where Kennedy would side with Gorsuch in a case where he has difficulty making up his mind.
The name of the game nowadays on the Supreme Court is to win Kennedy’s vote in the cases that are split 4-4, and if Gorsuch were right alongside him in those cases, Kennedy might be more inclined to be sympathetic to Gorsuch’s view given the close professional relationship that the two of them have.
As yet, it is not clear whether Democrats in the Senate will try to obstruct Gorsuch’s nomination, but if he is ultimately confirmed, the law as we know it could look very different a generation from now.