On January 31, President Donald Trump nominated Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to fill the vacancy left by the late Justice Antonin Scalia on the U.S. Supreme Court. Penn Law faculty members respond to Judge Gorsuch’s nomination.
Neil Gorsuch is among the very best judges in the United States of America. Over more than a decade as a judge and public servant, he has earned a reputation for brilliance, clarity, beautiful writing, and fair-mindedness.
Gorsuch follows sound legal principles, not his personal preferences, ruling even-handedly for whichever side has the stronger claim. He couples a strong commitment to the rule of law with a concern to preserve Americans’ liberty against overcriminalization, overregulation, and punishing people without criminal intent or fair warning. And he has the spine to stand up to the government and for the powerless, whether they be schoolchildren, victims of excessive police force, or immigrants.
I had the honor of getting to know Judge Gorsuch after we attended the same college and graduate school and clerked at the Supreme Court for Justice Kennedy at different times. And I know the widespread esteem and admiration he has earned in the eyes of the very best lawyers and judges in this country.
Gorsuch has distinguished himself as a lawyer, a public servant, and a jurist. He is a credit to his home state of Colorado and will serve on the highest court in the land with honor and distinction.
The nomination of Judge Neil Gorsuch to a seat on the United States Supreme Court will likely bring to the public’s attention one of the most cited Supreme Court decisions of our time. That decision, Chevron v. Natural Resources Defense Council, decided in 1984, announced a principle of judicial deference to executive agencies, such as cabinet-level departments and independent regulatory agencies. The Chevron Court held that, when legislative terms are ambiguous, judges should defer to the reasonable interpretations given to those terms by the administrative agencies that are charged with implementing legislation. Last August, in a concurring opinion in an immigration case, Gutierrez-Brizuela v. Lynch, Judge Gorsuch wrote a detailed critique of Chevron, arguing that it amounted to an abdication of the judicial “duty to interpret the law and declare invalid agency actions inconsistent with those interpretations.”
Judge Gorsuch’s concurrence raises serious questions about the relationship between the three branches of government in the United States — and in particular about the role the courts should play when confronted with executive branch application of law. In Chevron, the Supreme Court upheld a regulation issued by the U.S. Environmental Protection Agency (EPA) that gave industry greater flexibility in complying with requirements of the Clean Air Act. (In one of history’s interesting wrinkles, Judge Gorsuch’s mother was the EPA Administrator who issued the rule that the Chevron Court upheld.) Over the years, the Supreme Court has continued to apply the doctrine of Chevron deference in numerous cases, sometimes adding clarity to it and sometimes raising questions about its meaning. Legal scholars have debated Chevron extensively. In his recent concurrence, Judge Gorsuch joined that debate, squarely questioning the constitutionality of Chevron’s principle of judicial deference.
Given the centrality of Chevron deference to the legal framework governing the nation’s administrative apparatus, Judge Gorsuch’s nomination will afford the nation an opportunity for robust public debate over a most pressing issue facing American law and society today.
Modesty is not a term most associate with the late Justice Antonin Scalia, at least not after reading one of his lucid but scornful opinions. Justice Scalia, however, was more modest than his proposed successor, Judge Neil Gorsuch, in an important respect. Scalia was part of a generation of conservative constitutionalists who thought the Supreme Court had upset the balance of powers through its rights jurisprudence, its overly rigorous scrutiny of the executive branch, and its insufficient deference to Congress. An architect of modern originalism and textualism, Scalia saw those interpretive methods as a means to restrain judges and thereby restore the balance of powers.
Judge Gorsuch is also a textualist and an originalist, but he is part of a new generation of conservative constitutionalists who think Scalia ceded too much judicial power to the executive branch (and perhaps too much legislative power as well). In fact, the Supreme Court has deferred to the executive branch and the administrative agencies that constitute it far less than the Court’s doctrines would seem to call for. But rejecting those doctrines, as Gorsuch has advocated, would likely reduce dramatically the deference lower courts give agencies. With lower courts interpreting laws and regulations for themselves, there will be far greater inconsistency in the judicial orders agencies receive in different parts of the country, resulting in more “circuit splits.” Those disagreements among the circuits will in turn generate new business for the Supreme Court, likely increasing the frequency, not only the stringency, of its review of the executive branch. Confirmation of Gorsuch would thus replace a proponent of judicial deference to the executive branch with a justice who finds that stance far too modest.
Catherine Struve, Professor of Law
I had the great pleasure of working with Judge Gorsuch when he was a member of the U.S. Judicial Conference Committee on Rules of Practice and Procedure and I was the reporter for the Advisory Committee on Appellate Rules. I do not expect that I will agree with all of Judge Gorsuch’s decisions, if he is confirmed to the Court. But I have the highest regard for his integrity, judicial temperament, intellect, and gift for writing.
In a break with traditions of comity and responsible governance going back over two hundred years, Senate Republicans spent nine months last year refusing to fulfill their role of advice and consent when President Obama nominated Judge Merrick Garland to fill the position on the Supreme Court left vacant by Justice Scalia’s untimely passing. Judge Garland is a non-ideological centrist and one of the nation’s most respected jurists who had previously been identified by leading Senate Republicans as a fully acceptable choice for the Court, but those same Senate Republicans did not even give Judge Garland a hearing much less a vote. This was a naked act of usurpation directed at President Obama and, more important, at the majority of Americans who voted for and supported President Obama as the leader who should fill vacancies on the Court that might occur during his time in office.
This power grab by Senate Republicans represents a threat to the integrity and independence of the judiciary, a politicization of the Supreme Court nominating process that should concern us all. In light of that act, the only appropriate way to fill this vacancy on the Court is for the current president to nominate another non-ideological centrist who can be a consensus selection on the merits in the same way that Judge Garland should have been. While Judge Gorsuch is a smart and capable jurist, he does not appear to satisfy that criterion. The advice and consent process will thus be particularly important for this nomination.