Assessing Gorsuch: What's the verdict on justice's first full term?
Some on the right were alarmed by Gorsuch’s first alignment with the court’s liberals against its conservatives.
“Has Gorsuch ‘Gone Wobbly’ Already?” wrote Austin, Texas, lawyer and legal blogger Mark Pulliam. He further worried that answer may be yes, with Gorsuch succeeding Justice Anthony M. Kennedy as “the court’s unpredictable flip-flopper.”
HITTING HIS STRIDE
But most conservatives saw Gorsuch’s vote and concurrence in Dimaya as a principled stand that followed the example set by Justice Antonin Scalia in a 2015 decision, Johnson v. United States, which struck down a vague definition of violent felony in the Armed Career Criminal Act.
Adam White, a research fellow at the Hoover Institution at Stanford University and executive director of the Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School, wrote that “no one familiar with Gorsuch’s record should be surprised to see him lean toward demanding greater specificity from Congress.”
Those who wonder whether Gorsuch has “gone wobbly” are asking “the fundamentally wrong question,” White adds in an interview. The justice’s opinions so far, he says, “reflect the values he espoused as an appeals court judge.”
Legal experts on the left also commended Gorsuch’s Dimaya opinion.
“We should be cautious about overreading or misreading Gorsuch’s vote as somehow being support for immigrants in general,” says Elizabeth B. Wydra, president of the Constitutional Accountability Center, a progressive legal organization in Washington, D.C. “But ultimately, he had the better of the argument about the law in that case. When Gorsuch is right, even his critics like me should say he’s right.”
Epps, a liberal-leaning law professor at Washington University in St. Louis, said on the First Mondays podcast in late April that Gorsuch’s concurrence in Dimaya seems to show the newest justice hitting his stride.
“We have ribbed him a little bit for using rhetoric that is a little bit over the top in cases that didn’t quite deserve it,” Epps said on the show. “I think Justice Gorsuch is a good writer.”
The Dimaya concurrence is “perfectly pitched,” added Epps, a former law clerk to Justice Kennedy.
First Mondays co-host Ian Samuel, a former Scalia clerk who is wrapping up a stint as a lecturer at Harvard Law School (and heading to Indiana University law school in Bloomington), said on the show that Gorsuch’s writing in Dimaya shows that “this is who this guy really is.”
“He is kind of developing these distinctive views, and he is going back to them,” the liberal Samuel said.
IT’S STILL EARLY
With 39 decisions still in the works as of early May, observers of Gorsuch say there is still much that his first full term could reveal about his views. “I’m in the camp that it’s still a little bit early to tell,” says John P. Elwood, a partner at Vinson & Elkins in Washington, D.C., and a frequent Supreme Court litigator. “It does appear that he is an independent voice.”
Leo of the Federalist Society says that “there will be a lot of valuable insights to come from this term.”
“It’s unusual for a single term to provide a complete and full picture of who a justice is and what he stands for,” he adds. “The fact of the matter is: It takes any justice some time to become immersed in the work of the court and to get his sea legs.”
This article was published in the June 2018 issue of the ABA Journal with the title "Assessing Gorsuch: After a year on the court, observers say the newest justice has been mostly predictable, but upcoming decisions will paint a fuller picture."
