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See You in Court

March 8, 2017

SEE YOU IN COURT: ANALYZING JUDGE GORSUCH’S VIEWS ON THE SEPARATION OF POWERS

By: Nathan Rice, Volume 101 Staff Member

Judge Neil M. Gorsuch has been cast into a political warzone since his nomination on January 31 to fill the late Antonin Scalia’s now long-vacant seat on the Supreme Court.[1] As he prepares for his confirmation hearing, it behooves Judge Gorsuch to avoid discussing inflammatory topics that could increase the hyper-partisan scrutiny he already faces.[2] At the same time, however, his opacity has made it difficult for members of the Senate to accurately gauge his views on important aspects of constitutional law.[3] Given the Supreme Court’s power to hand down decisions that reach the most intimate details of people’s lives, many Americans are rightly wondering: how might Judge Gorsuch’s views affect me?[4] In many cases, the answer to that question lies in the nominee’s writing from his decade-long tenure as a judge on the Tenth Circuit Court of Appeals.

The media has already noted several areas of the law where Gorsuch’s appointment could make an immediate impact.[5] Most commentators have focused on Gorsuch’s views regarding religion, highlighted by the Hobby Lobby contraceptive mandate case, which Judge Gorsuch and two other judges decided before it was appealed to the Supreme Court.[6] But while religion is undeniably important, an issue that may prove to be even more significant is how Judge Gorsuch views the separation of powers between the Executive, Legislative, and Judicial Branches of the federal government.[7] Using his past decisions as a guide, this piece seeks to illuminate how strictly Judge Gorsuch might police the boundaries between branches if his nomination were confirmed.

I. JUDICIAL RESTRAINT: SEPARATING THE JUDICIARY AND THE LEGISLATURE

In conservative circles, Judge Gorsuch has been hailed as an heir to Justice Scalia’s style and philosophy.[8] In keeping with the comparison, Gorsuch has vigorously asserted the separate roles of the judiciary and the legislature.[9] Reading new meaning into a statute, he has written, “like all judicial efforts to assert the primacy of hidden intentions over plain text, risk[s] offending the separation of powers.”[10] Textualism, a philosophy to which both Judge Gorsuch and Justice Scalia have subscribed, encourages the view that a law can have no meaning outside of what can be ascertained from the statutory language itself.[11] To search beyond the language for intent or other meaning is, according to Judge Gorsuch, “a good deal more legislative than judicial in character.”[12] Thus on matters pertaining to the role of the judiciary, Gorsuch is a textualist in the mold of Justice Scalia who will strictly construe the separate spheres of legislative and judicial authority.

II. THE ADMINISTRATIVE STATE: SEPARATING THE EXECUTIVE AND THE LEGISLATURE

One of the most intriguing aspects of Judge Gorsuch’s jurisprudence is his perspective on the administrative state. During his time on the Tenth Circuit, Gorsuch extensively questioned the constitutionality of certain grants of lawmaking power to agencies housed within the Executive Branch.[13] In reviewing agency regulations, the Supreme Court has developed multiple levels of deference, including the omnipresent Chevron framework.[14] Just last year, Judge Gorsuch wrote both a majority opinion and a separate concurrence in Gutierrez-Brizuela v. Lynch to express his view that Chevron is neither necessary nor free from constitutional defect.[15]

In criticizing Chevron, Judge Gorsuch once again framed his concern in terms of the separation of powers:

In enlightenment theory and hard won experience under a tyrannical king the founders found proof of the wisdom of a government of separated powers. In the avowedly political legislature, the framers endowed the people’s representatives with the authority to prescribe new rules of general applicability prospectively. In the executive, they placed the task of ensuring the legislature’s rules are faithfully executed in the hands of a single person also responsive to the people. And in the judiciary, they charged individuals insulated from political pressures with the job of interpreting the law and applying it retroactively to resolve past disputes. This allocation of different sorts of power to different sorts of decisionmakers was no accident.[16]

Within the separation of powers framework, Gorsuch has focused particularly on the ever-expanding power of the executive. In another decision, he wrote, “[p]erhaps because the framers anticipated an Executive charged with enforcing the decisions of the other branches—not with exercising delegated legislative authority,” the Constitution is silent on many issues central to modern administrative law.[17] The heightened scrutiny on the executive is merited, in Judge Gorsuch’s view, because “when unchecked by independent courts exercising the job of declaring the law’s meaning, executives throughout history ha[ve] sought to exploit ambiguous laws as license for their own prerogative.”[18]

Whether or not Judge Gorsuch’s views on Chevron can turn the tide in administrative law, his writing indicates a keen awareness of the tendency of the modern executive branch to accumulate power. His Chevron criticism also indicates his willingness to police the constitutional boundaries of the Executive and Legislative Branches with even more force than many of his potential future colleagues on the Supreme Court.[19]

III. JUDICIAL INDEPENDENCE: SEPARATING COURTS FROM THE POLITICAL BRANCHES

Finally, and perhaps most importantly, Judge Gorsuch has proven to be a fervent proponent of judicial independence. In a 2005 editorial, Gorsuch decried the politicization of judicial nominations, saying that “the politicization of the judiciary undermines the only real asset it has—its independence.”[20] Ironically, some pundits now assert that if confirmed to the Supreme Court, Gorsuch would be nothing more than a “partisan stooge.”[21] If anyone needs assurance as to Gorsuch’s convictions, they need look no further than his concurrence in Gutierrez-Brizuela. “Even more importantly,” he wrote, “the founders considered the separation of powers a vital guard against governmental encroachment on the people’s liberties . . . . [I]f politically unresponsive and life-tenured judges were permitted to decide policy questions . . . [t]he very idea of self-government would soon be at risk of withering to the point of pointlessness.”[22] As his record pellucidly shows, Judge Gorsuch will not be a mere “stooge” for this, or any, administration that exceeds the bounds of its constitutional authority.

CONCLUSION

No amount of measured analysis can mitigate the partisan war that will unfold over Judge Gorsuch’s confirmation vote. Any change on the Court is supremely important, and many individuals have valid concerns that Gorsuch’s confirmation could severely and deleteriously affect them. But any fear that Judge Gorsuch is unwilling or unable to act as an impartial check against an erratic Trump administration or hyper-partisan Congress is misplaced. Gorsuch’s record evinces a firm dedication to the principle of a constitutionally-ordained separation of powers. Throughout his career he has vigilantly policed the boundaries between the judiciary, the legislature, and the executive, and his record should reassure anyone worried about executive or legislative overreach in the coming years.

  1. See Julie Hirschfeld Davis & Mark Landler, Trump Nominates Neil Gorsuch to the Supreme Court, N.Y. Times (Jan. 31, 2017), https://www.nytimes.com/2017/01/31/us/politics/supreme-court-nominee-trump.html. ↑
  2. See, e.g., Julie Hirschfeld Davis, Neil Gorsuch’s Criticism Wasn’t Aimed at Trump, Aides Say in Reversal, N.Y. Times (Feb. 9, 2017), https://www.nytimes.com/2017/02/09/us/politics/neil-gorsuch-supreme-court.html (noting the uproar over certain of Judge Gorsuch’s comments allegedly directed towards President Trump). ↑
  3. See Carl Hulse, Gorsuch, Like Previous Supreme Court Nominees, Keeps Views Hidden, N.Y. Times (Feb. 20, 2017), https://www.nytimes.com/2017/02/20/us/politics/gorsuch-like-previous-supreme-court-nominees-keeps-views-hidden.html (“Democrats say that Judge Gorsuch must be willing to discuss the merits of past Supreme Court decisions as well as his judicial principles and philosophy if they are to make a judgment on his fitness.”). ↑
  4. See, e.g., Christina Cauterucci, What Neil Gorsuch, Trump’s SCOTUS Pick, Means for American Women, Slate (Jan. 31, 2017, 8:21 PM), http://www.slate.com/blogs/xx_factor/2017/01/31/what_neil_gorsuch_trump_s_scotus_pick_means_for_american_women.html. ↑
  5. See, e.g., Jeffrey Toobin, Six Questions Senators Should Ask Neil Gorsuch, New Yorker (Feb. 23, 2017), http://www.newyorker.com/news/daily-comment/six-questions-senators-should-ask-neil-gorsuch (raising questions regarding abortion, privacy, and immigration, among other issues). ↑
  6. See, e.g., Mark K. Matthews & John Frank, What Neil Gorsuch’s Faith and Writings Could Say About His Approach to Religion on the Supreme Court, Denver Post (Feb. 11, 2017), http://www.denverpost.com/2017/02/10/neil-gorsuch-religion (“More than most issues, U.S. Supreme Court nominee Neil Gorsuch’s writings on the intersection of religion and the law have faced intense scrutiny before his expected confirmation hearings.”). ↑
  7. See Hulse, supra note 3 (quoting a Congressman in regard to separation of powers issues: “I don’t think there is a more important question in light of this president.”). ↑
  8. Adam Liptak, In Judge Neil Gorsuch, an Echo of Scalia in Philosophy and Style, N.Y. Times (Jan. 31, 2017), https://www.nytimes.com/2017/01/31/us/politics/neil-gorsuch-supreme-court-nominee.html. ↑
  9. See, e.g., Lexington Ins. Co. v. Precision Drilling Co., 830 F.3d 1219, 1222 (10th Cir. 2016). ↑
  10. Id. ↑
  11. See Nicholas S. Zeppos, Justice Scalia’s Textualism, The “New” New Legal Process, 12 Cardozo L. Rev. 1597, 1598 (1991). ↑
  12. Lexington Ins., 830 F.3d at 1222. ↑
  13. See, e.g., Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016); Caring Hearts Pers. Home Servs., Inc. v. Burwell, 824 F.3d 968, 969 (10th Cir. 2016); De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2016). ↑
  14. See Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain, 89 Geo. L.J. 833, 833–34 (2001). ↑
  15. See Gutierrez-Brizuela, 834 F.3d at 1149 (Gorsuch, J., concurring) (“There’s an elephant in the room with us today. . . . Maybe the time has come to face the behemoth.”). ↑
  16. Id. ↑
  17. De Niz Robles, 803 F.3d at 1171. ↑
  18. Gutierrez-Brizuela, 834 F.3d at 1152 (Gorsuch, J., concurring). ↑
  19. See Jack M. Beermann, Chevron at the Roberts Court: Still Failing After All These Years, 83 Fordham L. Rev. 731, 741 (2014) (analyzing the Justices’ views on Chevron). ↑
  20. Neil Gorsuch, Liberals’N’Lawsuits, Nat’l Rev. Online (Feb. 7, 2005, 7:42 AM), http://www.nationalreview.com/article/213590/liberalsnlawsuits-joseph-6. ↑
  21. Tom Scocca, Neil Gorsuch Won’t Fill the Vacancy on the Supreme Court, Deadspin: Concourse (Feb. 1, 2017), http://theconcourse.deadspin.com/neil-gorsuch-wont-fill-the-vacancy-on-the-supreme-court-1791875408 (“Gorsuch is a loyal Republican operative. If he were the neutral, bipartisan, sterling judge he’s supposed to be, he would never have accepted Trump’s invitation to usurp another neutral, bipartisan, sterling judge.”). Contra Mark Joseph Stern, Neil Gorsuch Is Not a Villain, Slate (Jan. 31, 2017), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/01/neil_gorsuch_is_not_a_villain.html. ↑
  22. Gutierrez-Brizuela, 834 F.3d at 1149 (Gorsuch, J., concurring). ↑
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