Neil Gorsuch for SCOTUS. Good choice or Bad?

[Mister Emu]

But Scalia could be and was

I did say it was suggested he was an even more strident proponent than Scalia, this implies that Scalia had faults in his defense of the constitution. However, compared to those who attack it with the living document "philosophy" he was a constitutional crusader.

 

[metis]

I did say it was suggested he was an even more strident proponent than Scalia, this implies that Scalia had faults in his defense of the constitution. However, compared to those who attack it with the living document "philosophy" he was a constitutional crusader.

All in the SCOTUS are loose-constructionalists and have been for over two centuries now. It's a matter of degrees, but I do agree that Scalia is less so than most modern SCOTUS judges.

 

[Mister Emu]

All in the SCOTUS are loose-constructionalists and have been for over two centuries now.

That simply isn't true.

Breyer for instance believes in a "living constitution" that lays down "ancient values" that he applies to modern times. That understanding of the Constitution should change depending on how well he thinks it works for modern America.

You simply can't be an constructionalist and make up rights on the fly because 'that's liberty'. A constructionist would say that if you want a discrete right that isn't currently expressed in the Constitution, amend it. And that is what they say.

 

[metis]

That simply isn't true.

Breyer for instance believes in a "living constitution" that lays down "ancient values" that he applies to modern times. That understanding of the Constitution should change depending on how well he thinks it works for modern America.

You simply can't be an constructionalist and make up rights on the fly because 'that's liberty'. A constructionist would say that if you want a discrete right that isn't currently expressed in the Constitution, amend it. And that is what they say.

Right after the Constitution was formulated and signed, a dispute broke out over how it was to be interpreted and applied. The "strict-constructionists" said that it should be that the national government cannot make any law that doesn't find its precedent in the exact words of the Constitution itself.

OTOH, the "loose-constructionists" believed that laws may be passed that are not necessarily specifically expressed in the Constitution in black and white but only as long as they are not in violation of the Constitution.

The latter has prevailed for over two hundred years, which is why we have many thousands of different laws that cover a wide range, some not even imagined two centuries ago.

 

[Nous]

I feel like I'm eating crow a little bit here, but other than a couple of the cases overly hyped by the media such as Hobby Lobby,* I can't find much--or actually anything--to complain about in Judge Gorsuch's opinions. Indeed, of the several dozen opinions of his I've read since his nomination, I find almost all them extraordinarily principled and intelligent, and, to top it off, he even has an engaging, sometimes even rather witty, writing style. I think few people could refrain from smiling at his expression of frustration that begins his opinion in Ute Indian Tribe of the Uintah v. Myton:

We’re beginning to think we have an inkling of Sisyphus’s fate. Courts of law exist to resolve disputes so that both sides might move on with their lives. Yet here we are, forty years in, issuing our seventh opinion in the Ute line and still addressing the same arguments we have addressed so many times before. Thirty years ago, this court decided all boundary disputes between the Ute Indian Tribe, the State of Utah, and its subdivisions. The only thing that remained was for the district court to memorialize that mandate in a permanent injunction. Twenty years ago, we modified our mandate in one respect, but stressed that in all others our decision of a decade earlier remained in place. Once more, we expected this boundary dispute to march expeditiously to its end. Yet just last year the State of Utah and several of its counties sought to relitigate those same boundaries. And now one of its cities tries to do the same thing today. Over the last forty years the questions haven’t changed -- and neither have our answers. We just keep rolling the rock.​

http://www.ca10.uscourts.gov/opinions/15/15-4080.pdf

One can find his opinions at the 10th Circuit by searching “Gorsuch, Circuit Judge” here. For anyone wondering whether he will make a competent Supreme Court Justice, I encourage you to read the opinions authored by him. I am happy to see that professor Neal Katyal, former acting Solicitor General under Obama and, along with Gorsuch, member of the Advisory Committee on Rules of Appellate Procedure, enthusiastically endorses him also. Gorsuch's nomination will probably be Trump's only non-disastrous act during his brief stint in office.




*A decision that Congress could easily overturn by enacting a perfectly constitutional law or amendment to the RFRA exempting corporations from asserting religious exercise rights for the purpose of circumventing neutral laws of general applicability.

 

[Nous]

Right after the Constitution was formulated and signed, a dispute broke out over how it was to be interpreted and applied. The "strict-constructionists" said that it should be that the national government cannot make any law that doesn't find its precedent in the exact words of the Constitution itself.

Huh? What? Who said that?

 

[Revoltingest]

Gorsuch is in the news for his vote against a Trump interest.
The Supreme Court just handed the Trump administration a loss on immigration — and Gorsuch was the tiebreaking vote

From the article....
The Supreme Court said Tuesday that part of a federal law that makes it easier to deport immigrants who have been convicted of crimes is too vague to be enforced.

The court's 5-4 decision — an unusual alignment in which new Justice Neil Gorsuch joined the four liberal justices — concerns a catchall provision of immigration law that defines what makes a crime violent. Conviction for a crime of violence makes deportation "a virtual certainty" for an immigrant, no matter how long he has lived in the United States, Justice Elena Kagan wrote in her opinion for the court.

The decision is a loss for President Donald Trump's administration, which has emphasized stricter enforcement of immigration law. In this case, President Barack Obama's administration took the same position in the Supreme Court in defense of the challenged provision.

With the four other conservative justices in dissent, it was the vote of the Trump appointee that was decisive in striking down the provision at issue. Gorsuch did not join all of Kagan's opinion, but he agreed with her that the law could not be left in place. Gorsuch wrote that "no one should be surprised that the Constitution looks unkindly on any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it."

 

[Nous]

Gorsuch is in the news for his vote against a Trump interest.
The Supreme Court just handed the Trump administration a loss on immigration — and Gorsuch was the tiebreaking vote

From the article....
The Supreme Court said Tuesday that part of a federal law that makes it easier to deport immigrants who have been convicted of crimes is too vague to be enforced.

The court's 5-4 decision — an unusual alignment in which new Justice Neil Gorsuch joined the four liberal justices — concerns a catchall provision of immigration law that defines what makes a crime violent. Conviction for a crime of violence makes deportation "a virtual certainty" for an immigrant, no matter how long he has lived in the United States, Justice Elena Kagan wrote in her opinion for the court.

The decision is a loss for President Donald Trump's administration, which has emphasized stricter enforcement of immigration law. In this case, President Barack Obama's administration took the same position in the Supreme Court in defense of the challenged provision.

With the four other conservative justices in dissent, it was the vote of the Trump appointee that was decisive in striking down the provision at issue. Gorsuch did not join all of Kagan's opinion, but he agreed with her that the law could not be left in place. Gorsuch wrote that "no one should be surprised that the Constitution looks unkindly on any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it."

Interestingly, ironically, Ian Millhiser at ThinkProgress sees Gorsuch's vote and concurrence here as part of a larger program to "hobble government," namely by preventing agencies such as the EEOC and the EPA from making rules interpreting the law. I must be naive or blind or both. I don't perceive any such sinister motives, and I don't comprehend how that alleged program is going to get off the ground unless a majority on the Court join in. No one else joined Gorsuch's concurrence, even though I find it quite straightforward and entirely reasonable. He begins with this:

Vague laws invite arbitrary power. Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.

The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.

[. . . ]

Respectfully, I am persuaded instead that void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.
​

I just don't see how such a premise for his opinion here is going to slide into the disaster that Millhiser envisions.

 

[Revoltingest]

Gorsuch is in the news again, this time for upholding civil liberties in state law.
High court likely to say states can't levy excessive fines

The court has formally held that most of the Bill of Rights applies to states as well as the federal government, but it has not done so on the Eighth Amendment’s excessive-fines ban.

Justice Neil Gorsuch was incredulous that Indiana Solicitor General Thomas Fisher was urging the justices to rule that states should not be held to the same standard.

“Here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on, general,” Gorsuch said to Fisher, using the term for holding that constitutional provisions apply to the states.

The USSC appears ready to expand the Incorporation Doctrine.
Good news for civil libertarians....I hope.

 

[Nous]

Gorsuch is in the news again, this time for upholding civil liberties in state law.
High court likely to say states can't levy excessive fines

The USSC appears ready to expand the Incorporation Doctrine.
Good news for civil libertarians....I hope.

Frankly, I don't even understand why the individual provisions of the Bill of Rights must be explicitly incorporated against the states under the Due Process, Privileges or Immunities, and/or Equal Protection clauses. It seems to me those clauses demand such incorporation, without need for the Court's express approval. In the instant case, Indiana did not even allow this petitioner an excessive fines defense whatsoever in the “civil forfeiture” confiscation of his $42,000 Land Rover for using it once to drive to the park to sell 2 grams of heroin to an undercover officer for $225, and for driving it again for the purpose of making another sale to the officer, which never occurred. The maximum fine for the criminal offense was $10,000, and the sentence imposed was suspended under terms that the petitioner has complied with.

In any case, in one way or another it seemed all 9 Justices agreed in oral arguments that the provisions of the Eight Amendment have already been sufficiently incorporated against the states. It seems all indications point to the Court reversing Indiana's ruling. So, Indiana is now retreating into the claim that civil forfeiture is not a fine. Thus this case can't avoid the issue of some of the butt-load of conundrums with civil forfeiture. Obviously the Court needs to sort these problems out somehow. Ginsburg noted one practical suggestion, but I'm not sure the Court will address any problems with civil forfeiture in the case.

 

[Revoltingest]

Gorsuch is in the news....
Neil Gorsuch Joins Sonia Sotomayor's Majority Opinion in Native American Hunting Case | National Review
I like his stance on this issue.

Excerpted....
The Supreme Court on Monday decided to uphold the hunting rights of the Wyoming-based Crow tribe, ruling that a Crow man charged with illegal off-season hunting in the state’s Bighorn National Forest was protected by a 150-year-old treaty between the federal government and the tribe.

Justice Neil Gorsuch broke the tie in the five to four decision, joining Justice Sonia Sotomayor’s majority opinion stating that an 1868 treaty between the Crow and the U.S. still holds, as the Crow man, Clayvin Herrera, had claimed.

Lower courts had argued that the treaty expired when Wyoming achieved statehood in 1890.

There is not “any evidence in the treaty itself that Congress intended the hunting right to expire at statehood, or that the Crow Tribe would have understood it to do so,” Sotomayor wrote in her opinion.

Gorsuch, a Colorado native who served for over a decade on a federal circuit court of appeals in Denver that covered 76 tribes, has joined the liberal-leaning contingent of Supreme Court justices to vote in favor of Native American rights before. In March, he broke a tie on the Court in a case dealing with whether the Yakama Tribe has the right to use public roads and avoid taxes on goods brought to their reservation, based on the terms of a 164-year-old treaty.

8
President Trump nominated Gorsuch to replace the late justice Antonin Scalia on the Court in 2017, after several Native American tribes penned letters of support for him.

Gorsuch “appears to be both attentive to the details and respectful to the fundamental principles of tribal sovereignty and the federal trust responsibility,” read a letter from the National Congress of American Indians and the Native American Rights Fund written at the time.

 

[Revoltingest]

Gorsuch is in the news again...
Criminal Defendants Score As Gorsuch Joins Liberals

 

[Revoltingest]

In the news....
Liberal Justices Are Still Notching Victories Despite Conservative Supreme Court