The clarity of Neil Gorsuch, Trump’s nominee for the Supreme Court

Photo: Elena Olivo/NYU Photo Bureau

The New York Times described Donald Trump’s nominee for the Supreme Court as “an Echo of [Antonin] Scalia in Philosophy and Style.” But where the late Justice Scalia’s writings were sarcastic and passive-aggressive, Gorsuch’s are straightforward, logical, and clear. Because he writes often in the first-person, his arguments come across as direct rather than snide or veiled.

Let’s look at a few, in excerpts cited by The National Law Journal, The Wall Street Journal, and USA TodayMy analysis follows each one.

On Euthanasia

From his book The Future of Assisted Suicide and Euthanasia

“Having reviewed extant arguments for legalization suggested by the case law and in contemporary moral-legal debate, in the final part of the book … I pursue the second purpose of this book, outlining an argument for retaining current laws banning assisted suicide and euthanasia … It is an argument premised on the idea that all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”

Analysis: Overall, an effective use of the first-person “I”; Gorsuch takes responsibility for his arguments. This could have been even more clearly stated as “I argue that killing people is always wrong.” He uses the quasi-passive voice “argument [that is] premised” to make the argument the focus of the sentence.

On discovery becoming more prevalent than trials

From a speech to the Federalist Society in 2013:

“[W]e’ve now trained generations of attorneys as discovery artists rather than trial lawyers. They are skilled in the game of imposing and evading costs and delays, they are poets of the nasty gram, able to write interrogatories in iambic pentameter, yet terrified of trial.”

Analysis: Again, the use of “we” includes the audience in the challenge. And “poets of the nasty gram able to write interrogatories in iambic pentameter” is fresh and evocative metaphor.

On religious freedom in the Hobby Lobby case

This opinion addresses whether Hobby Lobby’s owners, a couple named Green, should be bound to offer health benefits that offend their religious convictions:

“No doubt, the Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive. But no one disputes that they are sincerely held religious beliefs. This isn’t the case, say, of a wily businessman seeking to use an insincere claim of faith as cover to avoid a financially burdensome regulation. . . . the terms of the Religious Freedom Restoration Act apply. The Act doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

Analysis: A clear statement would render this as “The Greens’ religion is offended by contraception, so the government shouldn’t require them to pay for it.” Gorsuch uses too many words (which is probably an occupational hazard for judges), but his meaning is clear and his examples are specific.

On separation of powers

The principle of “Chevron deference” tells courts to defer to the executive’s interpretation if there’s doubt in how to interpret a law. Gorsuch is no fan. From his opinion last August:

“Under any conception of our separation of powers, I would have thought powerful and centralized authorities like today’s administrative agencies would have warranted less deference from other branches, not more. None of this is to suggest that Chevron is ‘the very definition of tyranny.’ But on any account it certainly seems to have added prodigious new powers to an already titanic administrative state.”

Analysis: Some very long sentences, but Gorsuch gets points for using “I” and “prodigious new powers to an already titanic administrative state.” Titanic!

On roadside religious displays

In a 2010 dissenting opinion regarding the propriety of roadside crosses commemorating fallen Utah state troopers, Gorsuch evokes what a hypothetical observer might see:

“In this case, our observer starts with the biased presumption that Utah’s roadside crosses are unconstitutional…[W]hen he looks to see whether he might overcome his initial bias, the task proves impossible because he disregards the very secularizing details — such as the fallen trooper’s name inscribed on the crossbar — that might allow him to change his mind. He misses these integral components of the display, we’re told, because ‘a motorist driving by one of the memorial crosses at 55-plus miles per hour may not notice, and certainly would not focus on, the biographical information.’ . . . It seems we must also take account of our observer’s selective and feeble eyesight. Selective because our observer has no problem seeing the Utah highway patrol insignia and using it to assume some nefarious state endorsement of religion is going on; yet, mysteriously, he claims the inability to see the fallen trooper’s name posted directly above the insignia…[W]e will strike down laws other courts would uphold, and do so whenever a reasonably biased, impaired, and distracted viewer might confuse them for an endorsement of religion.”

Analysis: Here’s a bit of the Scalia sarcasm. I very much like the visual narrative, which makes the point vividly. Here’s how to write this more simply: “Only a vision-impaired, feeble-minded idiot would think the roadside crosses were a religious display endorsed by the state. Surely we’ve taken political correctness too far.”

On settling cases for good

After 40 years of litigation, Gorsuch thinks the Ute tribe should give up on its lawsuits about local authorities trampling on tribal authority.

“[S]ooner or later every case must come to an end. . . . A system of law that places any value on finality — as any system of law worth its salt must — cannot allow intransigent litigants to challenge settled decisions year after year, decade after decade, until they wear everyone else out. Even — or perhaps especially — when those intransigent litigants turn out to be public officials, for surely those charged with enforcing the law should know this much already.”

Analysis: Pretty damn clear.

On why judges should use the original interpretation of laws

From a lecture at Case Western University:

“Judges should… strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

“Judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views.”

Judges should “regularly issue judgments with which they disagree as a matter of policy — all because they think that’s what the law fairly demands.”

Analysis: You should make recommendations, and nobody should be unclear on what you’re suggesting. Gorsuch recommends that judges should reflect what laws mean, not what they want them to mean. That means going against your own convictions at times. On the fundamental dispute of the judiciary, it’s clear where he stands.

I prefer clarity in everyone, including people I disagree with

I think Trump picked Gorsuch, not just because he is a reliable conservative, but because he’s clearly a no-bullshit writer and thinker.

I don’t concur in many of Gorsuch’s opinions. But from these excerpts, I feel like I know how this guy thinks. And that means we can make a fair evaluation. I like to know the actual reasoning of people with whom I disagree. And in contrast to lots of the know-nothing opinions and spurious arguments now circulating around Trump’s latest appointments and decisions, there is clear reasoning here.

If all of us and our intellectual opponents were this clear, we’d get a lot more done.

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  1. Insightful as always! I thought the phrase “taking of human life by private persons is always wrong” was especially interesting because of the middle part, “by private persons.” He’s ruling against euthanasia but allowing for the possibility of the death penalty and other forms of non-private/governmental life-taking.

  2. Nice analysis: when what Wikipedia calls “weasel words” have become the norm for public officials, it is refreshing to see clear, honest text (however disagreeable).

    Also, previous commenter notes an important distinction…disturbing in that it could also apply to the NSC’s (secret) authorization of assasination of those whom they determine to be “enemies”, be they foreign or domestic.

  3. Thank you for this insightful post. I agree Neil Gorsuch’ writings do give us clarity into his thinking. One excerpt you provide makes me wonder how carefully the Trump administration vetted Judge Gorsuch. ” … the Religious Freedom Restoration Act … does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.” Like you I do not agree with many of Judge Gorsuch’ opinions but this statement gives me a glimmer of hope.

  4. A hypothetical would clarify Judge Gorsuch’s position: Suppose an Islamic memorial for a fallen trooper were to be put roadside. Instead of a cross, suppose an equally sized crescent and star are put in the cross’s place. Surely, one can easily imagine popular outrage at this. As to its legality, would Judge Gorsuch reach the same conclusions as to whether or not allowing such a memorial is a tacit imposition of religion by the state. I can see it now, many Americans harboring negative attitudes toward Islam would be outraged that a state funded road would allow such a religious symbol that they find objectionable. Would Judge Gorsuch be OK with that outcome, since he’s all about “process”? I suspect not, lest he completely pi**es off his current base of support: right wing conservatives. It would curious to see if he still remains an impassioned interpreter of the law, rather than someone looking to rationalize an outcome.

  5. “Judges should… strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

    Come now, justice Gorsuch — such a clear, logical, elegant legal reasoner should be able to recognize a false dichotomy when he writes one. “focusing backward” and deciding on the basis of the judge’s “own moral convictions” are not the only two foundations for constitutional interpretation. Perhaps if you consulted a legal philosopher who does’t pay dues to the Federalist Society you might discover some of the other possibilities. You might, for instance, consult the work of, oh, maybe Ronald Dworkin….

  6. It is being reported that Judge Gorsuch refers to Oregon’s death with dignity provision as “essentially a right to consensual homicide.”

    Isn’t his definition of an individual’s right to die as “essentially a right to consensual homicide” a classically wrong use of language. “Homicide” is “the killing of another person,” early 13c., from Old French homicide, from Latin homicidium “manslaughter,” from homo “man” (see homunculus) + -cidium “act of killing” (see -cide).”

    Taking one’s own life is not “homicide.” Receiving a perscription is no more “consensual” than is the sale of a weapon to a person. The pescription does not impose a requirement that the perscription be used (it often isn’t, anymore than is a weapon purchased for self-protection).