by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Judge Neil Gorsuch has emerged as the leading contender to fill the Supreme Court vacancy, and his nomination is expected as early as next week, according to sources familiar with the selection process.
He is a judge on the 10th Circuit Court of Appeals, to which he was nominated by President George W. Bush in 2006 and confirmed by voice vote. Gorsuch, 49, would be the youngest Supreme Court nominee in about 25 years.
He clerked for Judge David B. Sentelle on the U.S. Court of Appeals for the D.C. Circuit and then for Supreme Court Justices Byron White and Anthony Kennedy. Gorsuch attended Harvard Law and has a Ph.D. from Oxford, where he was a Marshall scholar. In legal circles, he’s considered a gifted writer. Like Scalia, he is a textualist and an originalist.
I don’t generally put much stock in such rumors, but I’ll be delighted if this one turns out to be true.
I’ve been one of Judge Gorsuch’s admirers ever since I read his dissent in United States v. Carloss. The case involved the 4th Amendment’s protection against unreasonable searches and seizures and, specifically, the extent to which that guarantee applies to the area around the home known as “curtilage.” As I wrote at the time:
The Carloss opinion is notable for a stinging thirty-page dissent by Judge Gorsuch that is worthy of Justice Scalia. After reviewing the common law roots of curtilage, the implied license, and its revocation, as well as the original understanding of these issues at the time the Fourth Amendment was written and ratified, Judge Gorsuch concludes:
The government appears to be moved by the … worry: that if clearly posted No Trespassing signs can revoke the right of officers to enter a home’s curtilage their job of ferreting out crime will become marginally more difficult. But obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits. Neither, of course, is it our job to weigh those costs and benefits but to apply the Amendment according to its terms and in light of its historical meaning. Besides, it is hardly the case that following the Fourth Amendment’s teachings would leave the government as bereft of lawful alternatives as it seems to suppose. The Amendment and the common law from which it was constructed leave ample room for law enforcement to do its job. A warrant will always do. So will emergency circumstances. After-the-fact consent may suffice if freely given. And, of course, there’s no need for consent when officers search only open fields rather than curtilage. Neither is there need for consent when officers enter curtilage for a non-investigative purpose. Our duty of fidelity to the law requires us to respect all these law enforcement tools. But it also requires us to respect the ancient rights of the people when law enforcement exceeds their limits.
That’s the kind of clear and principled thinking we need on the Supreme Court!