The Corner

A Gorsuch Made Mostly of Straw

Supreme Court Associate Justice Neil M. Gorsuch (Jabin Botsford/Reuters)

Leah Litman writes in Slate:

When President Donald Trump nominated Neil Gorsuch to the Supreme Court in 2017, his supporters argued that Gorsuch would be a friend to criminal defendants. They made this argument in part to rebut the suggestion that Gorsuch would never rule for the “little guy.” The argument also functioned to counteract the idea that judges are ideologues.

This narrative has persisted throughout Justice Neil Gorsuch’s short time on the Supreme Court. Writers like to depict him as a friend to criminal defendants; the tone of several pieces even makes it sounds like he is among the most-criminal-defendant-friendly justices on the modern court.

Litman then argues that Justice Gorsuch has written several opinions and voted in several cases in ways that would make the legal landscape worse for criminal defendants.

I didn’t recall that Gorsuch’s defenders’ making that case, so I was curious to check out the four links in that passage.

Link 1 is to Kevin Ring in Reason, arguing that Gorsuch is “a judge willing to stand up for the rights of unpopular defendants if that’s what the law requires.” Gorsuch, writes Ring, “is not known to have a soft spot for armed criminals” but also dislikes vague criminal laws. Thus, he concludes, we should be confident that Gorsuch is willing to overcome any hostility he has toward criminals and suspected criminals in issuing rulings. So the link is not an example of anyone’s saying that Gorsuch “would be a friend to criminal defendants” on the Supreme Court.

Link 2, based on the part of it I can read without registering, seems to be a valid example.

Link 3 (on “ideologues”) goes to a post by Ed Kilgore, a liberal who isn’t a Gorsuch defender. His post doesn’t really have much to say aobut whether Gorsuch is an ideologue. To the extent it does, it casts him as more of an ideologue than Justice Kavanaugh.

Link 4 (on “depict him”) goes to a Daily Caller article that starts, “Justice Neil Gorsuch joined with the Supreme Court’s liberal bloc to deal victory for criminal defendants Monday, striking down a federal law that punishes gun crimes as unconstitutionally vague.” That sentence and a similar headline are the closest that the article come to bearing out Litman’s description – and have the benefit of being accurate. I suppose Kevin Dailey could have added: “By the way, don’t infer from this case that Gorsuch generally sides with criminal defendants.”

For all that, I didn’t dislike Litman’s piece. The attention to Gorsuch’s pro-criminal defendant rulings really could create a misleading impression about his jurisprudence generally and it is worth providing a more complete sense of it. But I am left thinking that Gorsuch’s defenders have mostly not argued for him as a friend of criminal defendants — nor should they have, since a Supreme Court justice shouldn’t approach the kind of cases that come before him with a bias for or against criminal defendants.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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