Is Supreme Court nominee Mr. Congeniality?

By Douglas Levy
BridgeTower Media Newswires
DETROIT — To paraphrase Donny and Marie, U.S. Supreme Court nominee Neil M. Gorsuch is a little bit Scalia and a little bit Kennedy.

And that, say appellate lawyers and constitutional law experts, could give both liberals and conservatives pause and cause for relief.

Gorsuch, a 10th U.S. Circuit Court of Appeals judge, was nominated by President Donald Trump on Jan. 31. If confirmed, he will fill the vacancy on the nation’s highest court made when Justice Antonin Scalia died a full year ago.

President Barack Obama had nominated Merrick Garland, chief judge of the U.S. Circuit Court of Appeals for the District of Columbia, for the vacancy after Scalia’s death. Senate Republicans refused to consider the pick, saying the seat should be filled only after the November election.

John J. Bursch, who has extensive appellate experience before the U.S. Supreme Court, said that from a jurisprudential standpoint, Gorsuch follows Scalia’s model, which is to be a textualist and an originalist.

“[Gorsuch is] not ignoring the context of the words he’s being asked to interpret and decide, but certainly doing that in the context of what it meant to someone at the time of their passage,” said Bursch, a former Michigan solicitor general who is now a solo practitioner in Caledonia.

“To the extent that that’s liberal or conservative, that’s certainly his philosophy.”

Yet, according to Robert A. Sedler, a constitutional law professor at Wayne State University Law School, Gorsuch could be persuaded in the same vein as Justice Anthony M. Kennedy, the judge for whom Gorsuch once clerked.

“Assume he’s on the conservative side,” Sedler said. “You’re going to scour his opinions to see if you can pick up some inkling of how he sees conservative issues, but … cases do break down on traditional liberal/conservative lines. And clearly, Gorsuch is a conservative in that way; he sort of restores Kennedy as the [swing vote] justice.”

But, he added, “it’s also interesting to note that while the media typically characterizes Kennedy as a conservative, the fact is, of all the high-profile important cases — marriage equality, affirmative action, reproductive rights, death penalty — Kennedy has voted with the liberals.”

Having Kennedy as a mentor, and possibly as a fellow justice, can be a good thing, said Shereef Akeel of Akeel & Valentine PLC in Troy.

“It’s an interesting piece of his background, where hopefully he would approach a case where you don’t know where he’s going to go like Kennedy, who’s a swing vote,” Akeel said. “You hope that those experiences will serve as positive traits in how he approaches rendering an opinion.”

Bursch said Gorsuch already possesses positive traits in terms of his personality, in that he doesn’t embody the acerbic nature that Scalia did.

“The speculation is, as a result, it might be easier for him to find coalitions on the Supreme Court that maybe Justice Scalia would not [have been] able to find,” Bursch said. “It also doesn’t hurt that he was a former Justice Kennedy clerk and has that special judge/clerk relationship.

“It may well be in a close case, he might be able to find a narrow ground where he may be able to pull Justice Kennedy over to his side with some of the other conservative justices in a way that Justice Kennedy could not be persuaded before.”

In addition, Bursch said, Gorsuch has many of the same qualities that endeared Justice Elena Kagan to the Senate and the high court when she was nominated in 2010.
Of note, Bursch added, is that Scalia was among those lobbying for her.

“She has a winning personality and was only too happy to reach across the aisle to persuade her colleagues,” he said. “Sometimes justices get in their silo of their jurisprudence and forget that, ultimately, if they can’t get others to agree with them, then their position loses, no matter how persuasive, logical and forceful it may be.”

Gorsuch is where Scalia was philosophically, “at least with his general approach to the practice of judging,” said J. Richard Broughton, who teaches constitutional law at University of Detroit Mercy School of Law.
“It might be he reaches different results in particular cases than Scalia did, but I think for the most part he’s going to line up nicely with Scalia.”

However, he doesn’t envision Gorsuch being a “larger-than-life figure like Scalia was.”

“I don’t think he’ll be an icon of conservative legal rights. But he will most likely be steady and reliable for the conservative wing of the court, even if he doesn’t have the larger-than-life character that Scalia had.”
Sedler said Gorsuch is best described as “a reliable conservative. He’s a politically smart choice because he isn’t a flamethrower.”

Sedler said he predicts that during the confirmation process, Gorsuch will tell Democrats he strongly supports the stare decisis doctrine, which holds that the courts are bound by decisions in previous cases.

“I don’t foresee him breaking new ground. He’s going to take the court back to where it was when Scalia sat on the bench,” Sedler said. “He shares the same legal philosophy as Scalia, but as you know, every justice has his own view on different constitutional provisions. While Scalia was not big on Fourth Amendment rights, he was on Sixth Amendment rights when it came to jury trials and confrontational witnesses.”

When it comes to making an immediate impact on the court, Broughton said Gorsuch will be effective with administrative law and structural constitutional law issues, areas in which Gorsuch has “provocative views.”

“I was reading recently some of his work on the nondelegation doctrine, which is a completely obscure area of constitutional law but it’s very important to the doctrine of the separation of powers,” Broughton said.

“Judge Gorsuch has some strongly held views about the scope of it … He could end up being a pretty influential voice, and Justice Scalia was a very influential voice in that area as well. In this sense, Gorsuch is a nice complement to Scalia.”

Yet, Bursch noted, Gorsuch has more skepticism for the administrative state and is less deferential to administrative agencies than Scalia would have been — particularly the Chevron deference principle.

That principle stems from Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which concerned how courts should treat agency interpretations of statutes that mandated that agency to take action. The Supreme Court held that courts should defer to agency interpretations of such statutes unless they are unreasonable.

“In fact, [Gorsuch] has written a number of things that suggest he might be aligned with Justice [Clarence] Thomas’ view that the court should do something to temper Chevron deference a little bit, because the administrative agencies are beginning to run the asylum,” Bursch said.

Akeel said that in viewing Gorsuch’s record, he considers the nominee “a staunch advocate of protecting the Constitution, especially the First Amendment, which is good news because of what’s going on today.”

But with Gorsuch being in the majority in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 10th Cir. (2013), that message may be obscured or misinterpreted.

The opinion (which in 2014 was affirmed by the Supreme Court in the consolidated case Burwell v. Hobby Lobby Stores, Inc. 573 U.S. ___ (2014)) favored privately held, for-profit, secular corporations — and individuals who owned or controlled them — who raised religious objections to paying for contraception for women covered under their health plans.

Broughton said the general public did not necessarily focus on the fact that the cases were statutory interpretation matters.

“They weren’t really about the meaning of the establishment clause or free exercise clause of the Constitution — although certainly those cases reflect maybe his view of religious liberty in some broader sense,” Broughton said. “I don’t think those cases in particular tell us exactly where he might be with respect to the meaning of the establishment clause or free exercise clause, so those are still open questions.”

Akeel said that so long as Gorsuch maintains his own separation of church and state, he’ll be an ideal justice.

“Once you’re appointed for life, you have free reign to exercise independent thought on what you believe to be the rule of law,” he said. “So it’s critical that he not judiciously legislate or impose ideology in his opinions, and will
render an opinion based on the rule of law.”