Neil Gorsuch Is No Friend to Criminal Defendants

Justice Neil Gorsuch in robes against a red curtain.
Justice Neil Gorsuch at the Supreme Court building on June 1, 2017. Jonathan Ernst/Reuters

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. And some commentators who cannot resist the blazing hot countertakes have even suggested that Gorsuch is better for criminal defendants than a Justice Merrick Garland would have been.

Where to start? Even just a few cases from the Supreme Court’s current term make it clear that Gorsuch is no friend to criminal defendants. The fact that he rules against the government in some number of criminal cases, and occasionally departs from his more law-and-order conservative colleagues in doing so, does not change that fact. At most, Gorsuch is as good for criminal defendants as the least-criminal-defendant-friendly Democratic appointee. That hardly makes him a hero. On some cases, Gorsuch has played the villain.

Let’s start with Garza v. Idaho, where the Supreme Court held 6–3 that criminal defense lawyers who, contrary to their client’s express directive, do not appeal their client’s conviction are presumed to have prejudiced their client’s Sixth Amendment rights to effective counsel. Three justices disagreed. One of them was Gorsuch. But Gorsuch did not stop there. He chose to join the portion of Justice Clarence Thomas’ dissent that questioned whether criminal defendants even have a constitutional right to appointed counsel if they cannot afford a lawyer. The decisions holding otherwise, such as Gideon v. Wainwright, are bedrocks of the criminal justice system. My hot take is that a hypothetical Justice Merrick Garland would not have voted to undermine the basis of our indigent defense system.

That was not the only case in which Gorsuch sought to cast aside a significant constitutional protection for criminal defendants. In Bucklew v. Precythe, a case that allowed Missouri to execute a man whose rare medical condition meant that execution would be particularly painful, Gorsuch wrote an opinion that moved the court’s Eighth Amendment jurisprudence in a decidedly less-defendant-friendly direction. Prior Eighth Amendment cases had underscored that the amendment prohibits punishments that are inconsistent with evolving standards of decency. But in Bucklew, Gorsuch made no mention of that evolving decency standard, the basis for the Eighth Amendment’s prohibition on executing children or persons with mental disabilities. Gorsuch wrote that the Eighth Amendment forbids only those punishments that are

long disused (unusual) forms of punishment that intensified the sentence of death with a (cruel) “ ‘superadd[ition]’ ” of “ ‘terror, pain, or disgrace.’ ”

Even more troublingly, Gorsuch indicated that it is actually an unresolved question whether the Eighth Amendment is limited to prohibiting only a smaller subset of punishments where “the State intended its method [of punishment] to inflict such pain.”

The idea that the Eighth Amendment prohibits punishments only when a state intended to inflict pain was proposed in a previous case by Thomas and Justice Antonin Scalia. And while Gorsuch indicated it is unclear whether the Eighth Amendment embodies that standard, he made a point of repeatedly incorporating that standard, signaling his agreement with it.

Bucklew also favorably cited an earlier decision in which Gorsuch had ruled against a criminal defendant—the now infamous case of Dunn v. Ray. In Ray, the Supreme Court lifted a stay on the execution of Dominique Ray. Alabama wanted to—and did—execute Ray, a black, Muslim man, without allowing him an imam in his final moments in the execution chamber. (The prison allowed Christian chaplains into the execution chamber but did not allow Ray an imam.) In a later, related case, Murphy v. Collier, Gorsuch again would have allowed a state to execute a man who was denied a spiritual adviser of his own denomination even when the state offered other death row inmates of other religions—particularly Christianity—such advisers.

Another example was Stokeling v. United States, a decision that expanded the reach of the Armed Career Criminal Act, which subjects certain federal criminal defendants with three or more prior convictions to mandatory minimum terms of 15 years’ imprisonment. There was also Madison v. Alabama, when Gorsuch would have allowed Alabama to execute a man whose mental illness left him with no memory of his crime, and Moore v. Texas, when Gorsuch would have allowed Texas to execute a man with serious adaptive disabilities.

I could go on, but I will list just one more example: Flowers v. Mississippi. In Flowers, a majority of the court ruled that the prosecutor had discriminated on the basis of race while striking jurors from serving on Curtis Flowers’ jury. Over the course of six trials, the same white prosecutor had eliminated 41 of the 43 prospective black jurors. Gorsuch joined Thomas’ dissent, which claimed that Flowers had provided no evidence of racial discrimination at his most recent capital trial.

It is true that Gorsuch sometimes departs from his conservative colleagues and rules for criminal defendants. It is also true that his seemingly libertarian instincts lead him to be more friendly to criminal defendants than Justice Brett Kavanaugh. In United States v. Davis, Gorsuch joined the four progressive justices to invalidate a federal criminal statute. And on Wednesday, in United States v. Haymond, he also joined the four progressive justices to invalidate a supervised release provision that would impose new mandatory minimum sentences based on factual finding by a federal judge, rather than a jury. Sometimes Gorsuch even votes for a criminal defendant when his more liberal colleagues, or a more liberal colleague like Justice Stephen Breyer, do not. For example, Gorsuch voted for the defendant in Gundy v. United States when his more liberal colleagues voted for the government. (He admittedly did so on a rationale that would have, in Justice Elena Kagan’s words, made all of government unconstitutional.)

I am a huge fan of the result in Davis, and also of the Sixth Amendment doctrine that Haymond applied. But all of these examples hardly establish that Gorsuch is a friend to criminal defendants. The fact that his aggressive approach to constitutional law, which largely frees him from the constraints of stare decisis, occasionally leads him to reshape the law in ways that favor criminal defendants should not obscure the many times that he has reached out to reshape the law in ways that would meaningfully harm them.

The need to spin a defendant-friendly narrative about Gorsuch reflects a desire for counterintuitive narratives, particularly in a time when we are likely to see ideologically polarized voting in high-visibility, ideological cases.

But just because something is counterintuitive doesn’t mean it’s right.