“Acutely Aware of My Own Imperfections” – A Modest Skeptic for the Supreme Court

Senate Judiciary Committee hearings regarding the nomination of Judge Neil Gorsuch to the Supreme Court of the United States begin Monday. Like most hearings of this nature, these will undoubtedly prove to be some mix of pomp and circumstance, political theatrics, and run-of-the-mine congressional inquiry. It has become increasingly apparent that the left side of the committee room may look to the hearings as their last best chance to get one of their opposition narratives about Judge Gorsuch to stick. Thus far, this has been a failing endeavor, thanks in large part to Judge Gorsuch’s unimpeachable character and qualifications as well as his wide, bipartisan support. But I have no doubt that the Democrats in the committee room are going to give it at least one more shot next week.

One of the narratives I suspect we will see pushed in lines of questioning is that Judge Gorsuch will be a rubber stamp for President Trump’s agenda. So says Marge Baker, executive vice president of People for the American Way, one of the left-wing outside groups trying to gin up political opposition to his nomination:

Trump is looking for someone who will uphold his anti-democratic actions, and he clearly believes Gorsuch will do that. Our Supreme Court should never be a partisan entity rubber-stamping the agenda of an extreme president. Rather, it must play a central role in our checks-and-balances system that protects all of our fundamental constitutional rights. This is always the responsibility of the Supreme Court. But when our rights, laws, and values are threatened by the actions of a president, it is more essential than ever before — and why the Senate must reject Judge Gorsuch’s nomination.

I find this particular narrative a bit curious, particularly since many on the left are simultaneously trying to make hay out of the fact that Judge Gorsuch is “skeptical of federal agency power” – an idea in tension with the assertion that Judge Gorsuch would be a “rubber stamp” for the executive who heads these agencies.

Apart from its lack of internal consistency, then, I also find this narrative contradicted by the evidence – to wit, Judge Gorsuch’s lengthy paper trail of judicial opinions and speeches. Judge Gorsuch has repeatedly demonstrated that he is a thoughtful jurist who is mindful of the various constraints on government power in our constitutional system, aware of his role as a judge in interpreting and enforcing those constraints, while sensitive to the importance of not allowing personal preferences to cloud judicial decision-making. This modest skepticism is, by my lights, the hallmark of a great jurist, and it is just one among many reasons to support Judge Gorsuch’s nomination.


1. Among the fundamental principles of due process—a value enshrined in not one but two places in the United States Constitution[1]—are the tenets that an individual should not be deprived of their liberty by the state unless the individual knew the conduct they committed was against the law,[2] and unless the individual had the intent (“mens rea”) to engage in the proscribed conduct.[3] Yet there are many laws in the United States Code that have been interpreted in such a way that the government can prosecute individuals for violation of those laws without having to demonstrate either that the person was aware their conduct was against the law or that the person intended to violate the law.[4]

One such law is the federal prohibition on felons possessing firearms.[5] A case came before the Tenth Circuit where a criminal defendant was charged with violating this law, even though the defendant ostensibly did not know he was a felon due to the nature of the plea agreement he had accepted in a prior prosecution.[6] Under Tenth Circuit precedent, for an individual to be found in violation of this federal prohibition, they do not need to be aware they are a felon; rather “the only knowledge required for a . . . conviction is knowledge that the instrument possessed is a firearm.”[7] Accordingly, the court applied this precedent and affirmed the defendant’s conviction and sentence. Judge Gorsuch, however, felt that the precedent was mistaken, thus concurring only in the judgment (and acknowledging that it was his duty to do so even though that duty “sometimes requires us to make mistakes”[8]). While stating that “precedent compels me to join the court’s judgment,” he also noted that “candor . . . compels me to suggest that we might be better off applying the law Congress wrote”—which explicitly mentioned a mens rea requirement that prosecutors had to prove in order to secure conviction—rather than the erroneous precedent.[9] However, the Tenth Circuit declined Judge Gorsuch’s invitation to reconsider its flawed precedent. Judge Gorsuch expressed his disappointment accordingly:

People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today, this court votes narrowly, 6 to 4, against revisiting this state of affairs. So Mr. Games-Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land. . . . this extraordinary situation warrants reconsideration.[10]

Judge Gorsuch did not deny that the case law was contrary to his views, and he applied it as was his duty to do so. He also felt the case law was wrong, and so he tried to go about correcting the error properly rather than engaging in juristic gymnastics to get around the precedential impediment. This demonstrates Judge Gorsuch’s appreciation for individuals’ right to be free from governmental coercion and constraint unless and until they have been afforded the full gamut of due process protections securing their liberty, as well as his understanding of the limits of his office.


2. Another recent opinion of Judge Gorsuch’s illustrates the same point. There is a principle of administrative law called Chevron deference, named after an eponymous Supreme Court opinion,[11] that requires federal courts to give significant weight to an administrative agency’s interpretation of a federal statute if that statute is ambiguous. However, as no less than the Chief Justice of the Supreme Court has recognized, this doctrine is “a powerful weapon in an agency’s regulatory arsenal,” and, when applied in certain situations, it threatens to upend the basic constitutional scheme of separation of powers that was created “for the purpose of safeguarding liberty.”[12] The case remains good law, however, so a court of appeals judge is required to apply it even if the judge disagrees with the principle or thinks it should not apply in a situation where the Supreme Court has held it clearly does.

The Tenth Circuit was recently confronted with a particularly thorny issue in which the doctrine of Chevron deference was intermixed, in a situation involving an immigrant who faced significant hurdles to obtaining a status revision on account of the Board of Immigration Appeals’ interpretation of the Immigration and Nationality Act.[13] In deciding the case, Judge Gorsuch applied controlling law to the facts and wrote an opinion ruling in favor of the immigrant. In a separate, non-binding opinion in the case, however, Gorsuch acknowledged that the “elephant in the room,” implicated in the case but not directly at issue, was the Chevron doctrine and related principles.[14] As he recognized, “the founders considered the separation of powers a vital guard against governmental encroachment on the people’s liberties.”[15] After all, “[a] government of diffused powers . . . is a government less capable of invading the liberties of the people.”[16] That is why the Framers divided the government into three branches: the executive to enforce the laws, the legislative to write the laws, and the judicial to interpret the laws.[17] Attuned to these principles, Judge Gorsuch expressed concern that Chevron effected a transfer of “the job of saying what the law is from the judiciary to the executive,” which “unsurprisingly invites the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions.”[18] In writing all of this separately, however, Judge Gorsuch acknowledged that it was not his place, as a court of appeals judge, to repudiate Supreme Court precedent. He simply flagged the issue so that it would perhaps catch the attention of his soon-to-be colleagues on the high court for their reconsideration.


3. Judge Gorsuch has also spoken informally about the problem of overcriminalization and its general consequences for the rule of law. As he wrote in the pages of the Harvard Journal of Law and Public Policy,

[T]he discipline of writing the law down, codifying it, advances the rule of law’s interest in fair notice. But today we have about 5000 federal criminal statutes on the books, most added in the last few decades. And the spigot keeps pouring . . . . There are so many crimes cowled in the numbing fine print of th[e Federal Register] that scholars actually debate their number. . . . Without written laws, we lack fair notice of the rules we must obey. But with too many written laws, don’t we invite a new kind of fair notice problem? And what happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?[19]

As he went on to observe, this was one of the very fears animating the Framers when they wrote the Constitution, which they designed to limit the multiplicity of centralized diktats.[20] Such concern about an expansive federal code evinces Judge Gorsuch’s nuanced understanding of the manifold ways in which the government might intrude on individuals’ lives and liberties.


4. Protecting religious liberty is not always convenient to the government. Nor do claims of religious liberty or freedom of conscience always prevail over governing laws. After all, “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”[21] Laws prohibiting child marriages, honor killings, and plural marriages all interfere with the religious beliefs of some people, yet the First Amendment is not understood to stand as an obstacle to these laws. “Government could exist only in name” if anyone “could excuse his practices” in violation of general laws “because of his religious belief.”[22]

Yet the protections in the First Amendment for the “free exercise” of religion would be a nullity if the government could pass any laws it desired regardless of the government’s interest in the law or the level of infringement upon religious belief it imposed. Recognizing this and responding to a Supreme Court decision that many viewed as watering down the protections of the First Amendment,[23] a bipartisan Congress in the early 1990s enacted—and an enthusiastic Democratic president signed into law[24]—the Religious Freedom Restoration Act, which prohibits the government from “substantially burden[ing] a person’s exercise of religion” unless the government demonstrates that the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.”[25]

The conflict between the government’s ability to impose burdens on religious beliefs and individuals’ right to be free from such burdens was at the heart of the dispute between Hobby Lobby Stores and the federal government regarding the contraceptive mandate regulation that was promulgated pursuant to the Affordable Care Act.[26] The Tenth Circuit heard this case on appeal from a federal district court decision rejecting the Hobby Lobby owners’ claim that, in light of their religious convictions that life begins at conception, the contraceptive mandate imposed an impermissible burden on their religious liberties by compelling them to provide forms of birth control that could cause abortions.[27] Judge Gorsuch joined the majority opinion reversing this decision and allowing the owners to proceed with their lawsuit seeking to prevent the government from forcing them to provide abortifacients to their employees against their religious convictions to the contrary.[28] Writing separately to explain his own views on the matter, Gorsuch articulated the importance of religious liberty, as well as the proper role of courts in giving effect to congressional enactments protecting that liberty:

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. . . . And to know this much is to know 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. . . . In many ways this case is the tale of two statutes. The ACA compels the Greens to act. RFRA says they need not. We are asked to decide which legislative direction controls. The tie-breaker is found not in our own opinions about good policy but in the laws Congress enacted. Congress structured RFRA to override other legal mandates, including its own statutes, if and when they encroach on religious liberty. . . . RFRA’s legislative direction . . . must prevail in the end.[29]


5. Notwithstanding the aforementioned skepticism of government power, Judge Gorsuch—like Justice Scalia before him[30]—understands the proper role of a judge and will not simply impose his personal policy preferences by interpreting the law as he wishes it to be rather than for what it is. As he stated so eloquently in a recent dissent,

Often enough the law can be “a ass—a idiot,” Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838)—and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands—and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a[n] ass as they do.[31]

In another recent opinion, Judge Gorsuch indicated that even when he thinks the law is “a ass,” it is his job to give that law its proper construction and effect rather than engage in hermeneutical adventurism to come to a preferable outcome. In a case involving a defendant who was caught distributing child pornography via e-mail, Gorsuch wrote for a unanimous panel of the Tenth Circuit that the government had obtained the evidence in question in violation of the defendant’s Fourth Amendment right to be free from unreasonable searches and seizures.[32] He came to this conclusion despite unquestionable personal disgust at the underlying crime and his explicit concern for the “important work” that the National Center for Missing and Exploited Children does, which was the governmental entity who conducted the search.[33]


In sum, Judge Gorsuch is a man of principle who nevertheless believes it is his role to apply the law as it is, not reinterpret it to say what he wants it to be. He is exactly the sort of individual who should be at the apex of our third branch of government.



[1] See U.S. Const. amend. V.; U.S. Const. amend XIV.

[2] See United States v. Santos, 553 U.S. 507, 514 (2008) (plurality opinion of Scalia, J.) (mentioning “the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subject to punishment that is not clearly prescribed”).

[3] See Morissette v. United States, 342 U.S. 246, 250 (1952) (“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”).

[4] See Paul J. Larkin, Jr., Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause, 37 Harv. J.L. & Pub. Pol’y 1065, 1076 (2014) (describing how strict liability offenses—which do not require the government to prove the defendant had the requisite mens rea in order to secure a guilty conviction—have proliferated recently, especially given the size of the administrative state and the fact that “a strict liability crime can consist in the violation not merely of a federal statute, a state law, or a municipal ordinance, but also of an administrative rule”).

[5] 18 U.S.C. § 922(g)(1).

[6] United States v. Games-Perez, 667 F.3d 1136 (10th Cir. 2012).

[7] United States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996).

[8] Games-Perez, 667 F.3d at 1142 (Gorsuch, J., concurring in the judgment).

[9] Id. at 1145

[10] United States v. Games-Perez, 695 F.3d 1104, 1116–17 (10th Cir. 2012) (Gorsuch, J., dissenting from denial of rehearing en banc).

[11] Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984).

[12] City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1879 (2013) (Roberts, C.J., dissenting).

[13] Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016).

[14] Id. at 1149 (Gorsuch, J., concurring).

[15] Id.

[16] Id.

[17] See Morrison v. Olson, 487 U.S. 654, 697–98 (1988) (Scalia, J., dissenting); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added) (“It is emphatically the province and duty of the judicial department to say what the law is.”).

[18] Gutierrez-Brizuela, 834 F.3d at 1152 (Gorsuch, J., concurring).

[19] Neil Gorsuch, Law’s Irony, 37 Harv. J.L. & Pub. Pol’y 743, 747–48 (2014).

[20] See The Federalist No. 62, at 381 (James Madison) (“It will be of little avail to the people, that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”).

[21] Reynolds v. United States, 98 U.S. (8 Otto) 145, 166 (1878).

[22] Id.

[23] See Employment Div., Dep’t of Human Res. of Ore. v. Smith, 494 U.S. 872 (1990) (holding that the free exercise clause did not bar enforcement of neutral laws of general applicability even though they burdened religious belief).

[24] Peter Steinfels, Clinton Signs Law Protecting Religious Practices, N.Y. Times (Nov. 17, 1993), http://www.nytimes.com/1993/11/17/us/clinton-signs-law-protecting-religious-practices.html (describing the “unusual coalition of liberal, conservative and religious groups that had pressed for the new law” and noting that “President Clinton hailed the new law at the signing ceremony”).

[25] Religious Freedom Restoration Act of 1993, Pub. L. 103-141, § 3, 107 Stat. 1488, codified at 42 U.S.C. § 2000bb.

[26] See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

[27] See Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1283 (W.D. Okla. 2012).

[28] Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1152 (10th Cir. 2013) (Gorsuch, J., concurring).

[29] Id. at 1152–53, 1156–57.

[30] See, e.g., Morrison v. Olson, 487 U.S. 654, 734 (1988) (Scalia, J., dissenting) (“The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound.”).

[31] A.M. v. Holmes, 830 F.3d 1123, 1170 (10th Cir. 2016) (Gorsuch, J., dissenting).

[32] United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016).

[33] Id. at 1308.


One comment

  1. Ronald Nolette · ·

    as usual, brilliant ologic applied to the epistle written Kudos!!!!

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