Neil Gorsuch is strikingly different from the man who nominated him to the United States Supreme Court. Where President Donald Trump is doltish and ignorant, Gorsuch is witty and astute. Where Trump is volatile and distractible, Gorsuch is principled and dexterous. And, perhaps most glaringly, where Trump is rambling and incoherent, Gorsuch is eloquent and compelling—a strikingly good writer who can make the dustiest doctrine seem lively, and the most unpalatable position seem persuasive.
Consider the opening paragraph of Gorsuch’s slick appellate concurring opinion in Hobby Lobby, which often reads more like a homily than a judicial opinion. Gorsuch wanted to explain why a religious corporation should not be required to let its employees access contraception through their health insurance plans. It is not obvious why corporations (which are not real people) should have the right to deny contraception to female employees (who are real people). So Gorsuch stripped away the veneer of the corporation itself to paint a sentimental picture of the human conflict behind the case—the Green family’s belief that some contraception constitutes abortion:
All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case.
Unfortunately for the Greens, their religious beliefs did not exactly align with science: The contraceptives they opposed, like IUDs, did not really terminate pregnancies. But Gorsuch argued that this fact did not matter:
No doubt, the Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive. But no one disputes that they are sincerely held religious beliefs. This isn’t the case, say, of a wily businessman seeking to use an insincere claim of faith as cover to avoid a financially burdensome regulation. And to know this much is to know the terms of the Religious Freedom Restoration Act apply.
Then Gorsuch pulled a neat trick—completely flipping the politics of the case. Hobby Lobby wasn’t a villain imposing its beliefs on nonbelievers, Gorsuch implied; it was a maligned religious minority seeking protection from the law:
The Act doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.
Suddenly, a large Christian corporation wasn’t imposing its reactionary views on its employees. It was merely begging for “religious tolerance” from a cruel federal government.
Gorsuch is equally clever when penning less freighted and consequential opinions. His decision in an arcane case about renewable energy is oddly charming. The case involved a challenge to a Colorado renewable energy mandate that arguably discriminated against out-of-state energy producers. To uphold the mandate, Gorsuch needed to explain why it did not violate the “Dormant Commerce Clause,” a Supreme Court doctrine barring states from burdening out-of-state commerce. His first few sentences drolly mock the very notion of the Dormant Commerce Clause—which does not actually appear in the Constitution and can infringe upon states’ rights to regulate their own economies:
Can Colorado’s renewable energy mandate survive an encounter with the most dormant doctrine in dormant commerce clause jurisprudence? State law requires electricity generators to ensure that 20% of the electricity they sell to Colorado consumers comes from renewable sources. Under the law, too, this number will rise over time. It may be that Colorado’s scheme will require Coloradans to pay more for electricity, but that’s a cost they are apparently happy to bear for the ballot initiative proposing the renewable energy mandate passed with overwhelming support. So what does this policy choice by Coloradans affecting Colorado energy consumption preferences and Colorado consumer prices have to do with the United States Constitution and its provisions regarding interstate commerce?
Finally, consider Gorsuch’s attack on deference to agencies. Federal courts currently operate under something called “Chevron deference,” which requires them to defer to executive agencies’ interpretation of statutes, so long as they’re reasonable. Many conservatives, including Gorsuch, despise Chevron deference, arguing that it deprives courts of their judicial independence and grants agencies too much legislative authority.
As a lower court judge, Gorsuch has no authority to overrule Chevron. But in one remarkable concurrence (to a majority opinion that he himself wrote), he launched an assault on the doctrine. Gorsuch began by noting that his majority opinion carefully worked around Chevron (and a successor case called Brand X)—then laid out his case against Chevron itself:
There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.
In enlightenment theory and hard won experience under a tyrannical king the founders found proof of the wisdom of a government of separated powers. In the avowedly political legislature, the framers endowed the people’s representatives with the authority to prescribe new rules of general applicability prospectively. In the executive, they placed the task of ensuring the legislature’s rules are faithfully executed in the hands of a single person also responsive to the people. And in the judiciary, they charged individuals insulated from political pressures with the job of interpreting the law and applying it retroactively to resolve past disputes. This allocation of different sorts of power to different sorts of decisionmakers was no accident. To adapt the law to changing circumstances, the founders thought, the collective wisdom of the people’s representatives is needed. To faithfully execute the laws often demands the sort of vigor hard to find in management-by-committee. And to resolve cases and controversies over past events calls for neutral decisionmakers who will apply the law as it is, not as they wish it to be.
Ideology aside, Gorsuch is indisputably a fine judicial craftsman, who, if confirmed, will compete with Justice Elena Kagan as the court’s best stylist. Long after Trump leaves office, we will still be reading and interpreting his views on the law. For progressives, it is at least a consolation prize that his writings are so cogent and accessible.