Is Gorsuch More Conservative Than Clarence Thomas?
No Supreme Court justice is more conservative than Clarence Thomas, right? With his hardline originalism, his narrow reading of the Due Process and Equal Protection Clauses, his rejection of the Dormant Commerce Clause and stare decisis, Justice Thomas sits proudly on the farthest right wing of the Court.
Except, when it comes to conservatism, Justice Thomas could soon find himself out ranked. Donald Trump's Supreme Court nominee, Tenth Circuit Judge Neil Gorsuch, is significantly more conservative than both Justices Scalia and Thomas, according to a review of his Tenth Circuit decisions.
Significantly More to the Right, Study Finds
President Trump has long said that he was looking for a justice in Scalia's mold to take over the Court's vacancy, and he may have found one in Gorsuch. Gorsuch parallels the late justice in his originalism, his textualism, even in his writing style. And Judge Gorsuch has made it clear that he views Justice Scalia as someone to be emulated, as, in his words, "a lion of the law."
But when it comes to conservative rulings, Gorsuch could go farther than Justice Scalia, and even farther than Scalia's conservative colleague, Justice Thomas.
If confirmed, Gorsuch could become the most conservative justice on the Supreme Court bench, according to two political-science professors, Ryan Black and Ryan Owens of Michigan State University and the University of Wisconsin respectively, who compared Gorsuch's decisions with the Court's own. The duo examined cases where the Supreme Court reviewed decisions from Tenth Circuit during Gorsuch's tenure -- 26 in total.
Their conclusion: Gorsuch is to the right of all the other justices, by a significant margin. Writing in the Washington Post, the professors explain that "The magnitude of the gap between Gorsuch and Thomas," the most conservative sitting justice, "is roughly the same as the gap between Justice Sotomayor and Justice Kennedy during the same time period."
"In fact," the professors continue, "our results suggest that Gorsuch and Justice Scalia would be as far apart as Justices Breyer and Chief Justice Roberts.
The professors recognize, however, that they're not entirely comparing apples to apples:
To be sure, the kinds of appeals the Tenth Circuit was forced to hear are different than the kinds of cases the Supreme Court chooses to hear. It is possible that this mandatory docket makes Gorsuch look more conservative than he is. On the other hand, it is also possible that a discretionary docket would provide greater opportunity for Gorsuch to undo liberal doctrine. Conservatives will hope for the latter; liberals for the former.
Meanwhile, Gorsuch's nomination process moves ahead. This morning, the Senate Judiciary Committee announced that it would hold a hearing on Gorsuch's on March 20th, a bit over a month from now. It's certain to be a contentious one.
Related Resources:
- Hearing for Neil Gorsuch, Supreme Court Nominee, Is Set for March (The New York Times)
- Will Trump's Immigration Ban Find a Friendlier Audience in the Supreme Court? (FindLaw's U.S. Supreme Court Blog)
- With Gorsuch, Nothing Could Change -- or Everything Could (FindLaw's U.S. Supreme Court Blog)
- Gorsuch's Other Opinions: A Look at the Nominee's Nonjudicial Writing (FindLaw's U.S. Supreme Court Blog)
