Gorsuch May Be in the ‘Scalia Mold,’ But He’s No Scalia Clone

President Trump kept his promise in choosing a Supreme Court nominee “in the mold of Justice Antonin Scalia.” Now, as hard as it is to predict the twists and turns of any Supreme Court nomination, here’s an easy prognostication: progressives will disparage any Republican nominee as a mere “Scalia clone.” That happened with Chief Justice John Roberts. It happened even more intensely with Scalia’s fellow Italian-American, Samuel Alito, leading progressives to give him a highly offensive nickname “Scalito.” And now the same is happening with President Trump’s pick to replace Scalia, Neil Gorsuch.

Progressives do this because Antonin Scalia was the Left’s judicial hobgoblin, just as Trump quickly became their presidential bogeyman. The truth, of course, is that Justice Scalia was not all that conservative on many issues. And despite his outspoken fidelity to the original meaning of the Constitution, the late jurist was willing to depart from text and history to honor the high court’s precedents, whether they represented the left or the right side of the judicial ideological spectrum.

Putting aside Scalia’s legacy, however, it should be clear that comparing Scalia to Gorsuch is a largely useless endeavor. Gorsuch is an independent and accomplished thinker in his own right, born more than 30 years after Scalia, and likely to deal with entirely different constitutional issues.

While the Supreme Court controversies of Scalia’s generation were largely about the constitutional status of various questions relating to sexual privacy (such as contraception, abortion, and homosexuality), these issues do not have the same currency in 21st century America, including among Republican voters, who have shown they are more concerned with the larger and more fundamental questions surrounding sovereignty and national identity than these old culture war divisions.

How will Gorsuch be on the constitutional issues on the horizon? Predicting how nominees will act once on the High Court is a fool’s errand, fraught with uncertainty. This is particularly true with emerging legal issues, such as the current controversies over immigration and the Constitution’s application abroad. Those are legal matters that have not yet been stabilized through judicial precedent.

And this precaution should be especially high when dealing with Republican nominees. Let’s face it, the record is not great. More than half of the 12 Republican nominees over the last 45 years have moved substantially leftward once they’ve arrived at the court. For example, President Gerald Ford nominated John Paul Stevens as a conservative Midwesterner. Stevens retired nearly 35 years later, a hair to the right of Fidel Castro.

A helpful insight into a justice’s future jurisprudence can be his personal background. On this point, Gorsuch, the Western outdoorsman, is unlike any other justice currently on the High Court. Indeed, in many ways one could have learned more about Justice Sonia Sotomayor from her “wise Latina” comment than from any of her Second Circuit opinions. Although the Gorsuch nomination continues the regrettable Yale-Harvard high court cartel, if confirmed he would add some geographic and religious diversity to the court, becoming only the second justice not to hail from one of the coasts (Gorsuch is from Colorado) and the only justice to be neither Catholic nor Jewish (Gorsuch is Episcopalian).

While we cannot predict anything about Gorsuch with certainty, there are four defining characteristics of his judicial philosophy and style—two that mesh well with his predecessor and two that clearly distinguish him.

The similarities: First, Gorsuch is a clear, provocative, and compelling writer—in this way, he is indeed like Justice Scalia, but certainly more genteel, lacking Scalia’s acerbic and pugnacious wit.

Second, Gorsuch, like Scalia, joined the ultimate authority on legal writing and reasoning, Brian Garner, in writing a book—Gorsuch’s book is on stare decisis (the doctrine of judicial precedent), and it has quickly become the leading treatise on the subject. That certainly bodes well for Gorsuch’s commitment to the rule of law.

The differences: First, Gorsuch is committed to religious liberty, as seen most prominently in his interpretations of the Religious Freedom Restoration Act to protect corporations and organizations from the Affordable Care Act contraception mandate. (Gorsuch was famously involved in the Hobby Lobby and Little Sisters cases on the Tenth Circuit. He ruled in favor of religious liberty in both cases.) In this way, Gorsuch differs substantially from Justice Scalia, who notoriously adopted a very narrow view of religious liberty.

Second, Gorsuch is much more skeptical of federal power, particularly the massive delegation of power to the federal agencies through ambiguous mandates, leading to a bureaucratic Hydra of Lerna, roaming the land and sea in pursuit of ever more regulatory authority, accountable to no one.

On this issue, it is worth quoting from Gorsuch, to let his prose and style shine on its own: “There’s an elephant in the room with us today,” he wrote in a concurrence. “We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”

Maybe it is indeed time for the Supreme Court to face the behemoth, with Gorsuch leading the charge. For that to happen, however, Gorsuch will need to be confirmed, which may be no small feat with Senate Democrats out for revenge. On this point, it is worth mentioning one more thing Scalia and Gorsuch have in common: Both were confirmed unanimously—Scalia when nominated to the Supreme Court in 1986, and Gorsuch when nominated 20 years later to the 10th Circuit. But this is a different Senate, and these are different times.

As I said, predicting nominations is a fool’s errand, but I will reluctantly play the fool and predict three things. There will be massive resistance to Gorsuch, having nothing to do with Gorsuch’s character, judicial record, or intelligence. After an unprecedented Senate showdown, Gorsuch will be confirmed. And Justice Gorsuch will carve out a legacy completely distinct from that of Justice Scalia, but one that is just as admired for its commitment to the rule of law.

About Jesse Merriam

Jesse Merriam is an assistant professor at Loyola University. He holds an M.A. and Ph.D. from Johns Hopkins University and a J.D. from The George Washington University Law School.

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10 responses to “Gorsuch May Be in the ‘Scalia Mold,’ But He’s No Scalia Clone”

  1. Thank God ! Had this been a Obama or Hillory pick end of story.

  2. Can someone explain to me how “religious liberty” is not just a nice-sounding way of describing the right of religious people to discriminate against LGBTQ people? Why is freedom of association only a right for religious people? Shouldn’t ALL people have the right to associate freely as they so choose?

    • They do. But it has been severely compromised by the decisions in the 1940s on compulsory unionism.

    • “Freedom of association” does not mean you have the right to associate with whoever you wish. Other people have that right as well and have the freedom to not associate with you.

  3. The problem with using the courts, or The Court, to rein in “the elephant in the room” is that it can be anti-originalist, relying on judicial activism as much as the Left does, just to different ends. The “bureaucratic Hydra” (to mix in your metaphor) needs to be attacked at its heart, in the legislation that enabled the multifarious agencies and programs with vague, open-ended, and apparently immortal charters. Whether that can be done by any Congress is any open question. It might require a Convention of States, as Mark Levin has proposed.

    But it is certainly reassuring that Judge Gorsuch is aware of, and potentially an enemy of, the overreaching State.

    /Mr Lynn

  4. I was most pleased when I heard about his appreciation for the need to rein in the Administrative State. Not to mention relieved at the thought of who it might have been under a Hillary presidency!