Will Judge Gorsuch inspire other jurists?

This evening, President Trump—after a day that felt more like the final episode of The Apprentice than a Supreme Court nomination vetting process—nominated 10th Circuit Judge Neil Gorsuch to fill the late Justice Antonin Scalia’s seat.Judge Gorsuch—a Colorado native, Harvard Law graduate, and clerk for two Supreme Court Justices—is undoubtedly an elite legal mind and writer, fit to replace the legal lion that is Justice Scalia. Yet, back in July most legal observers would not have picked Judge Gorsuch to replace Justice Scalia. Putting aside the unlikely probability that Donald Trump would win the election, Judge Gorsuch was not on Trump’s list of eleven potential Supreme Court nominees he released in May 2016. Rather, Judg633219496-judge-neil-gorsuch-speaks-after-us-president-donald-jpg-crop-promo-xlarge2e Gorsuch appeared on Trump’s addendum to the original list released in September 2016.

Was there anything that happened between May and September that elevated Judge Gorsuch’s status? Well yes. In August, Judge Gorsuch wrote a blistering concurring opinion criticizing Chevron deference in Gutierrez-Brizuela v. Lynch, a seemingly ordinary immigration case. In Chevron v. Natural Resource Defense Council, the Court held that the judiciary will defer to an agency’s interpretation of a statute if the statute is ambiguous. Judge Gorsuch sharply attacked Chevron deference, noting that it obliterates Separation of Powers principles.

Judge Gorsuch’s concurrence was met with wide praise in conservative legal circles and he rocketed up Court Watchers’ Supreme Court shortlist. Indeed, other jurists on Trump’s list earned wide praise for their concurring opinions in seemingly simple cases. For instance, Justice Don Willet of the Texas Supreme Court earned national recognition after writing a concurring opinion in Patel v. Texas Department of Licensing and Regulation that aggressively defended economic liberty—a subject that has long been dear to legal libertarians.

Judge Gorsuch certainly would have been considered for a Supreme Court nomination absent his Gutierrez-Brizuela concurrence; the judge has an impeccable pedigree. Nevertheless, Judge Gorsuch’s willingness to call out the elephant in the room—Chevron deference—set him apart from the other jurists on President Trump’s list.

Going forward, both left and right-leaning circuit court judges may be inspired to write even more concurrences and dissents when they believe majority opinions are unavailing. This practice has been best exemplified by Justice Scalia, known affectionately as the “Great Dissenter,” and Justice Clarence Thomas, who is prolific for writing sharp concurrences. And this practice is crucial for the continued development of the law. Current Justices have remarked how Justice Scalia’s sharp analysis and writing forced them to hone their crafts. And Justice Thomas’s concurrence has brought debate to some of the most controversial and difficult legal matters. These opinions are invaluable to a field that thrives on critical analysis of issues that have implications for many.

Because of Judge Gorsuch’s nomination, I expect that many circuit court judges will begin writing concurring opinions on controversial matters. Previously, it may have been good for a judge to have a short paper trail. But today, it appears that strong well-reasoned opinions are a prerequisite to become a Supreme Court justice. One can hope that Judge Gorsuch’s nomination will inspire judges to write sharp and critical opinions reevaluating the state of the Establishment Clause, taxpayer standing, and the rational basis test—areas (among many other) in which the jurisprudence is borderline incomprehensible.

Four months ago, I argued that jurists need to bravely go it alone to influence future generations of law students. Well, it looks like going it alone might also get you a seat on the United States Supreme Court.

 

 

Leave a comment