Gorsuch's Other Opinions: A Look at the Nominee's Nonjudicial Writing
Since Neil Gorsuch's nomination to the Supreme Court this week, commentators have been pouring through his past opinions, looking for insight into who he is as a jurist and how he might rule on the Supreme Court. (That includes us at FindLaw. You can check out some of our surveys of Gorsuch's opinions in terms of technology, writing style, possible impact on the Supreme Court, and his legacy on the 10th Circuit.)
But Gorsuch doesn't just write for the court. He's also shared his thoughts, and revealed his worldview, through a large series of articles, speeches, and books, works that make up his nonjudicial canon. Here are a few you should be aware of.
Of Lions and Bears and Gorsuch and Scalia
If Gorsuch is confirmed by the Senate, he won't just take Scalia's seat on the Supreme Court, he'll become one of the standard-bearers of Scalia's judicial philosophy. In a lecture at Case Western Reserve last summer, "Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia," Gorsuch reviews the late justice's legacy ("the great project of Justice Scalia's career was to remind us of the differences between judges and legislators") and his understanding of the founder's view of the judicial power as "not a forward-looking but a backward-looking authority."
Here, too, he reflects on his personal connection to Justice Scalia, recounting learning of Scalia's death while skiing in Colorado. "I immediately lost what breath I had left, and I am not embarrassed to admit that I couldn't see the rest of the way down the mountain for the tears."
Liberals 'N Lawsuits
Where's Gorsuch stand on liberal impact litigation? He's not a fan.
In this brief piece in the National Review Online, "Liberals 'N Lawsuits," written in 2005, before he joined the Tenth Circuit, Gorsuch argues that the left's "overweening addiction to the courtroom as a place to debate social policy is bad for the country and bad for the judiciary."
"The Left's alliance with trial lawyers and its dependence on constitutional litigation to achieve its social goals risks political atrophy," Gorsuch writes, pointing specifically to the effort to advance gay marriage rights in the court:
Liberals may win a victory on gay marriage when preaching to the choir before like-minded judges in Massachusetts. But in failing to reach out and persuade the public generally, they invite exactly the sort of backlash we saw in November when gay marriage was rejected in all eleven states where it was on the ballot.
Gorsuch apparently didn't anticipate the rapid change in public opinion that would occur over the following decade, apace with litigants' later court successes.
Assisted Suicide, Abortion, and the "Inviolability" of Human Life
Gorsuch has written extensively about assisted suicide, or, as proponents prefer, "death with dignity." These include multiple articles in scholarly and popular publications, as well as a book published in 2007, shortly after the Supreme Court upheld Oregon's Death With Dignity Act in 2006. Gorsuch's book, "The Future of Assisted Suicide and Euthanasia," surveys the legal and ethical issues surrounding assisted suicide, before coming out against it.
That determination has given abortion advocates pause -- as well as, of course, supporters of death with dignity laws. That's because Gorsuch bases his opposition in the "inviolability" of human life, or, as his publisher puts it, "the idea that human life is intrinsically valuable and that intentional killing is always wrong."
In that philosophy, some see a threat to the future of Roe v. Wade and its progeny, particularly since Gorsuch has ruled in only a few cases touching on abortion rights. (Perhaps most relevantly, in Pino v. United States, he ruled that a wrongful death claim over the loss of a nonviable fetus could go forward, though his opinion largely just relayed the Oklahoma Supreme Court's answer to the Tenth's certified question.)
Gorsuch and Precedent
Speaking of Roe, would Gorsuch's addition to the Supreme Court bench mean the overturning of long-contested precedents such as Roe, or newer ones like Obergefell v. Hodges? It's unlikely, at least under the Court's current make up, since Gorsuch wouldn't swing the Court's ideological balance too much.
But if the chance arose to overturn precedent, any precedent, how might he approach it? And how might the judge apply the Court's existing precedent to future cases generally? You might be able to pull some clues from "The Law of Judicial Precedent." Gorsuch authored this recent publication, the first hornbook-style treatise on the doctrine in a century, alongside Bryan Garner and 10 of Gorsuch's appellate judge colleagues, including Supreme Court runner-up Thomas Hardiman.
In an interview with FindLaw, Bryan Garner told us that "My coauthors and I believe that good judging requires not being willful," not putting one's "own views on the law." Instead, they believe, good judging "involves self-abnegation."
- Neil Gorsuch Is Nothing Like Donald Trump (Slate)
- With Gorsuch, Nothing Could Change -- or Everything Could (FindLaw's U.S. Supreme Court Blog)
- Scalia's 5 Most Influential and Important Supreme Court Decisions (FindLaw's U.S. Supreme Court Blog)
- After a Century of Waiting, We're Finally Getting a Treatise on Judicial Precedent (FindLaw's U.S. Supreme Court Blog)
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