Online privacy, immigration, clean energy, and more in Neil Gorsuch’s own words

David Kravets
President Donald Trump shakes hands with Judge Neil Gorsuch after nominating him to the Supreme Court during a ceremony in the East Room of the White House on Tuesday. If confirmed, Gorsuch would fill the seat left vacant with the death of Justice Antonin Scalia in February 2016.
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"The qualifications of Judge Gorsuch are beyond dispute. He is a man our country needs badly to ensure the rule of law and the rule of justice... I only hope both Democrats and Republicans can come together, for once, for the good of the country."
That's what President Donald Trump said late Tuesday when he nominated Neil Gorsuch, a 49-year-old federal appeals court judge, to the Supreme Court. Gorsuch was tapped to replace the deceased Justice Antonin Scalia, and Trump has said all along he wanted a new justice to follow in the footsteps of Scalia's originalist approach. Anyone identifying as an originalist theoretically interprets the Constitution in a manner they believe is consistent with what the drafters and adopters of the document understood it to mean. Such a philosophy can lead to conservative results, though even Scalia had been accused of practicing "contradictory originalism."
Toward that originalist ideal, Gorsuch wrote (PDF) in a March concurring opinion that the Constitution "isn't some inkblot on which litigants may project their hopes and dreams." Instead, he said, the document was a "carefully drafted text judges are charged with applying according to its original public meaning." Accordingly, a recent academic paper concluded that Gorsuch was among the top potential Trump high court nominees who displayed the most "Scalia-ness" attributes.
Gorsuch was appointed to the Denver-based 10th US Circuit Court of Appeals by President George W. Bush in 2006. The Harvard Law School grad clerked for Supreme Court Justices Byron White and Anthony Kennedy. He was an official in Bush's Justice Department before being elevated to the bench. He lives in Boulder, Colorado, with his two daughters and wife Louise. On the side, he teaches law at the University of Colorado.
If the Gorsuch name is familiar, it may be because President Ronald Reagan nominated the new nominee's mother to head the Environmental Protection Agency. During her tenure, the agency underwent a "steep decline" in lawsuits against polluters and navigated a scandal over Superfund cleanup mismanagement.
Neil Gorsuch now likely faces a nasty confirmation battle. By Wednesday, the spin-meter was already running at full speed. Groups, lawmakers, and individuals on both the left and the right began blasting or trumpeting Trump's high court pick, who turns out to be a notable author.
More than a decade ago, in 2006, Gorsuch wrote a book called The Future of Assisted Suicide. In it, he opposes doctor-assisted suicide, which is legal in five states. He said the "intentional taking of human life by private persons is always wrong." The year before, in a National Law Review article, he ridiculed American liberals, saying they kept "relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda."
From here, expect only to hear more about Gorsuch's prior public opinions and decisions as an indication of how he might impact the Supreme Court should he be appointed. To that end, we've done the digging and found several Ars-relevant opinions and dissents to share.

Real-world, virtual privacy

In an August 2016 decision (PDF), Gorsuch ruled in favor of e-mail privacy, and his opinion invoked an originalist tone. The case concerned whether the National Center for Missing and Exploited Children was conducting a Fourth Amendment search (which usually requires a warrant) when the center opened e-mails sent to it by ISPs whose filters detected child pornography. As Gorsuch wrote:
We are dealing instead with the warrantless opening and examination of (presumptively) private correspondence that could have contained much besides potential contraband for all anyone knew. And that seems pretty clearly to qualify as exactly the type of trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment.
Earlier in a March 2016 ruling before the 10th Circuit, a three-judge panel was tasked with answering whether a so-called "knock and talk" violated the Fourth Amendment when a defendant had a "no trespassing" sign on the door. In a dissent, Gorsuch answered in the affirmative.
The 'knock and talk' has won a prominent place in today’s legal lexicon. The term is used to describe situations in which police officers approach a home, knock at the front door, and seek to engage the homeowner in conversation and win permission to search inside. Because everything happens with the homeowner’s consent, the theory goes, a warrant isn’t needed. After all, the Fourth Amendment prohibits 'unreasonable' searches, and consensual searches are rarely that. No doubt for just this reason law enforcement has found the knock and talk an increasingly attractive investigative tool and published cases approving knock and talks have grown legion. But in the constant competition between constable and quarry, officers sometimes use knock and talks in ways that test the boundaries of the consent on which they depend.

Internet taxation

Gorsuch concurred (PDF) last year in a decision upholding a Colorado law demanding online retailers who do not have a physical presence in the state to inform consumers of their sales tax liability and to report that tax information to the Colorado Department of Revenue.
"If anything, by asking us to strike down Colorado’s law, out-of-state mail order and Internet retailers don’t seek comparable treatment to their in-state brick-and-mortar rivals, they seek more favorable treatment, a competitive advantage, a sort of judicially sponsored arbitrage opportunity, or 'tax shelter,'" he wrote.

Religion in life, healthcare

Early in the Trump administration, it's clear the Affordable Care Act (also known as Obamacare) is on life support. That said, a 2015 dissent (PDF) including Gorsuch on the matter underscores his broad backing of religious rights. He wrote that Obamacare's mandate to provide contraception coverage violated the rights of non-profit religious groups.
All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?
Yet the panel majority holds otherwise.
In 2009, he voted against the majority to allow a Ten Commandments display in an Oklahoma county. And in 2010, he dissented in a majority ruling that found the Utah Highway Patrol Association violated the Establishment Clause when it constructed white crosses on public property to memorialize troopers killed in the line of duty.

Abortion

In October, Gorsuch dissented when his colleagues refused to reconsider an earlier ruling by the 10th Circuit that favored Planned Parenthood. Gorsuch wanted the full court to undo, or at least reconsider, the injunction a three-judge panel of the circuit granted that blocked a directive by the governor of Utah to essentially halt the flow of federal funds to a Planned Parenthood affiliate in that state. Gorsuch blasted the majority about questioning the governor's motive, which was to counter allegations Planned Parenthood was illegally selling fetal tissue.
"And it is undisputed, too, that the Governor was free as a matter of law to suspend the funding in question for this reason," Gorsuch wrote.

Firearms

Gorsuch in 2012 voted (PDF) to rehear a case concerning what the government must prove to convict somebody of being a felon in possession of a firearm. The full 10th circuit voted 6-4 to let the conviction stand. The issue was a federal firearms statute (PDF) that makes it a crime to be a felon in possession of a firearm. Gorsuch complained that the government only has to prove that the defendant knew he possessed the weapon, but "not that he also knew he was a convicted felon." In his dissent, he quoted Justice Clarence Thomas that the Second Amendment "protects an individual's right to own firearms and may not be infringed lightly." In his own words, Gorsuch said the government must prove that a defendant knew he was a convicted felon because "gun possession is often lawful and sometimes even protected as a matter of constitutional right."

Clean energy

In 2015, Gorsuch ruled (PDF) in favor of a Colorado law requiring that at least 20 percent of the electricity producers sold to Colorado consumers come from renewable sources. The Energy and Environment Legal Institute (EELI) challenged the statute, contending that out-of-state, non-renewable energy companies that sell on the Colorado power grid could lose business. The EELI also claimed the law violated the Commerce Clause. As Gorsuch wrote:
But as far as we know, all fossil fuel producers in the area served by the grid will be hurt equally and all renewable energy producers in the area will be helped equally. If there’s any disproportionate adverse effect felt by out-of-state producers or any disproportionate advantage enjoyed by in-state producers, it hasn’t been explained to this court. And it’s far from clear how the mandate might hurt out-of-state consumers either. The mandate does have the effect of increasing demand for electricity generated using renewable sources and (under the law of demand) you might expect that to lead to higher prices for electricity of that sort for everyone in the market (here, presumably, everyone connected to the grid). But the mandate also reduces demand for and might be expected to reduce the price everyone in the market has to pay for electricity generated using fossil fuels. So the net price impact on out-of-state consumers is far from obviously negative and, for all we know, may tip in favor of those willing to shift usage toward fossil fuel generated electricity.

Immigration

With President Trump's recent executive order and public response, immigration seems to be on everybody's mind. It's possible that legal challenges to that immigration executive order could reach the Supreme Court. Last year, Gorsuch defended (PDF) an immigrant from the new immigration legislation that would retroactively make it harder for an immigrant to obtain the legal right to reside in the US. Legislation, Gorsuch wrote, is "presumptively prospective." Having it apply retroactively denies people "fair notice of the law and risks endowing a decision maker expressly influenced by majoritarian politics with the power to single out disfavored individuals for mistreatment."
In that ruling, Gorsuch continued on about how judges should more actively put the federal government in check.
...the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them.... That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible—the decisionmaker promised to them by law—but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.
Online privacy, immigration, clean energy, and more in Neil Gorsuch’s own words Reviewed by Bizpodia on 02:55 Rating: 5

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