by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
That’s how Mike Rappaport summarizes Neil Gorsuch’s first year at the Supreme Court:
It has now been almost a year since Neil Gorsuch was confirmed as a Supreme Court Justice. Based on his behavior so far, what can say about how he is likely to write and vote in the future? And in particular what can we say about his position on originalism?
One significant aspect of his opinions and votes have been striking. In the 19 cases since Gorsuch has been on the court, he has voted with Justice Thomas – the Court’s most originalist justice – in every one of them. When Justice Thomas dissents, Justice Gorsuch joins the dissent. When Justice Gorsuch concurs, Justice Thomas joins the concurrence. The two even agree on joining the entire majority opinion, except for a single footnote. …
While it is still early, this evidence suggests pretty strongly that Justice Gorsuch is no Justice Souter or Chief Justice Roberts and could be another Justice Thomas.
The evidence that Justice Gorsuch is a strong originalist is also supported by some of his comments at oral argument. For example, Justice Gorsuch has asked skeptical questions about the originalist basis of decisions that allow the court to review legislative redistricting. Similarly, at oral argument, Gorsuch has sought to link protection under the Fourth Amendment to property rights, which might turn out to be in accord with the Amendment’s original meaning. …
Justice Souter, Justice Alito, and Chief Justice Roberts, none of whom is a strong originalist … did not read opinions written by Scalia in law school. Gorsuch did. Gorsuch might also have read Scalia and Thomas opinions when he was in graduate school. Moreover, the originalism that existed in his early years as a lawyer was a more popular and attractive originalism than the originalism that existed when those other justices were young lawyers. Thus, it would not be surprising that Gorsuch would be willing to tie his reputation to originalism in a way that Roberts has not.
Overall, then, Justice Gorsuch’s … opinions, votes, and statements at oral argument suggest a strong originalism and an overall approach similar to Justice Thomas’s. It is still early days, but so far things look very good.