Gorsuch Confounding Expectations
President Trump's first Supreme Court appointment has joined the liberal bloc on several cases.
Neil Gorsuch, appointed to the Supreme Court by President Trump after Mitch McConnell and Senate Republicans refused for a year to vote on President Obama’s nominee, is surprising many by siding with the liberal bloc on key cases.
Slate‘s Mark Joseph Stern points to the latest example in “Over Alito’s Fuming Dissent, Gorsuch and the Liberals Protect the Right to Trial by Jury.”
The constitutional right to trial by jury won a significant victory at the Supreme Court on Wednesday that once again brought Justice Neil Gorsuch together with the court’s liberal wing. Gorsuch’s plurality decision in United States v. Haymond places new, important limits on the government’s ability to extend the sentences of certain offenders without a jury’s input. It may be the first tremor in a coming Sixth Amendment earthquake. The remaining conservative justices seem to think so: Justice Samuel Alito’s apoplectic dissent warned that Gorsuch is preparing to demolish the federal scheme that Congress cooked up to let judges imprison offenders for longer than any jury ever permitted.
Alito is probably exaggerating—but even if he’s right, it’s about time SCOTUS scrutinized the “supervised release” system at issue in Haymond. Congress created this system after it abolished parole for federal defendants in 1984. Here’s how it works: Upon conviction, offenders are sentenced to a term of imprisonment and, after that, a period of supervised release. During this stretch of conditional freedom, offenders must abide by certain terms like drug testing. If they violate the terms, they can be sent back to prison for the remainder of their supervised release.
The law in Haymond altered this arrangement with grave constitutional consequences. It first states that offenders convicted of certain sex offenses who violate their supervised release must be imprisoned. So far, so good. But instead of sending these individuals back to prison for their original conviction, the statute compels judges to impose additional prison time for the new offense. Judges may find these individuals guilty of a new offense under a “preponderance of the evidence” standard, not the “beyond a reasonable doubt” standard typically required by due process. And judges make this finding without a jury’s involvement.
Andre Haymond’s case illustrates this scheme in action. At age 18, Haymond was convicted of possessing several images of child pornography. A judge sentenced him to a 38-month prison term, followed by 10 years of supervised release. After Haymond was released from prison, government agents accused him of possessing additional child pornography. He contested their claim in a proceeding that poked many holes in the government’s case. The judge announced that “[i]f this were a criminal trial and the Court were the jury, the United States would have lost.” But under the lenient standard prescribed by the law, the judge found it “more likely than not” that Haymond had downloaded the images. Under the law at issue, this finding required the judge to sentence Haymond to more time in prison—five years to life.
This entire process is wildly out of whack with the usual constitutional safeguards. Under the Sixth Amendment, the government must prove to a jury every element of a crime that raises the minimum or maximum sentence. And under the Fifth Amendment, it must do so beyond a reasonable doubt. Yet the law in Haymond allowed a judge, not a jury, to find a defendant guilty—and to do so by a preponderance of the evidence. Moreover, it obligated the judge to impose a mandatory minimum upon this finding of guilt, increasing the offender’s prison sentence.How might any of this be legal? In his plurality opinion—joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan—Gorsuch explained that it obviously isn’t. “Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty,” he began. “That promise stands as one of the Constitution’s most vital protections against arbitrary government.” In our system, juries “exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” A judge’s “authority to issue a sentence derives from, and is limited by, the jury’s factual findings of criminal conduct.” By forcing judges to exceed that authority, Congress ran afoul of the Constitution.
Jonathan Turley goes further, arguing “Washington owes Supreme Court Justice Neil Gorsuch an apology.”
“In our constitutional order, a vague law is no law at all.” Those are the words that opened one of the most important decisions of this Supreme Court term, in United States versus Quartavious Davis. In a 5-4 decision, the majority sided with a habitual offender in striking down an ambiguous provision that would allow enhanced penalties for a “crime of violence.”
The author of that sweeping decision in favor of criminal defendant rights was Justice Neil Gorsuch, the first nomination by President Trump to the Supreme Court. I testified at his Senate hearing, favoring his confirmation despite unrelenting attacks on him as a “rubber stamp” and an ideologue. Gorsuch has proven his detractors wrong and, as this term has proven, he has emerged as one of the most consistent and courageous voices on the Supreme Court. Indeed, a number of senators and pundits in Washington owe Gorsuch an apology for their attacks on someone who is building a new legacy that could be one of the most lasting on the Supreme Court.
Gorsuch has been fascinating to watch over the last two years. He has departed repeatedly from the right of the Supreme Court to do what he considers to be the right thing. He remains a conservative justice but, like his predecessor Antonin Scalia, he has shown a sense of his own “true north” judicial compass. In doing so, he has often made both the left and right of the Supreme Court seem shallow and predictable in their rigidity.
Consider the decision last week on double jeopardy in Terance Gamble versus United States. At issue was the ability of prosecutors to try to potentially sentence individuals for the same criminal conduct in state and federal courts. Some of us have argued that the “dual sovereignty” doctrine had effectively gutted the constitutional guarantee against double jeopardy. Six justices lined up behind Justice Samuel Alito to dismiss such concerns. The dissent by Gorsuch said, “A free society does not allow its government to try the same individual for the same crime until it is happy with the result. Unfortunately, the court endorses a colossal exception to this ancient rule against double jeopardy.”
Gorsuch joined Justice Ruth Bader Ginsburg in dissenting. He also broke from the conservative wing in upholding Native American rights. Indeed, in the last term of Justice Anthony Kennedy, who was lionized by liberals upon retirement as a principled swing voter, Gorsuch voted with liberal justices on important decisions on surveillance and sentencing. He also joined in key decisions supporting free speech against the government, including the opinion written by Justice Elena Kagan striking down a statute allowing the government to deny trademark protection to names deemed as “immoral” or “scandalous” by the government. Notably, the partial dissenters to this major victory for free speech were Chief Justice John Roberts, Justice Stephen Breyer and Justice Sonia Sotomayor.
The decision in Davis, however, was telling since it pitted Gorsuch once again on the opposite side from another Trump nominee, Justice Brett Kavanaugh. While Kavanaugh also has broken from the right wing of the Supreme Court on occasion, he has continued his record of consistently siding with prosecutors and police. In his dissent, Kavanaugh advanced the logic that worried some of us before his confirmation. In the face of a detailed and dispassionate analysis by Gorsuch, the dissent by Kavanaugh responded at times with what seemed like a string of empty platitudes.
The respective first lines in the two decisions were the most telling. Where Gorsuch emphasized how vague laws effectively gut due process and the rule of law, Kavanaugh declared, “Crime and firearms form a dangerous mix.” The response by Gorsuch was devastating. After laying out how the “crime of violence” has no clear meaning and leaves citizens at the whim of prosecutors, Gorsuch asked, “What does the dissent have to say about all this?” He noted that Kavanaugh simply cites the fact that the statute was used in “tens of thousands of federal prosecutions” for over 30 years and deemed it “surprising” that it should suddenly be unconstitutional.
However, Gorsuch noted that the government admitted that the original meaning was unconstitutional and was itself offering a “surprising” new interpretation to save it. Gorsuch said Kavanaugh and other conservative justices were trying to save an unconstitutional law by “giving this old law a new meaning by appealing to intuition.” Kavanaugh noted, if “you were to ask John Public whether a particular crime posed a substantial risk of violence, surely he would respond, ‘Well, tell me how it went down. What happened?'” Gorsuch answered this, “Maybe so. But the language in the statute before us is not the language posited in the dissenting push poll.”
Stern’s colleague Leah Litman hastens to point out “Neil Gorsuch Is No Friend to Criminal Defendants.”
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.
First off, Litman’s reading of the dissent in Garza is unfair. Thomas and Gorsuch (and Alito, in part) simply argued that, having entered into a plea agreement in which he explicitly waived the right to appeal, Garza could not claim ineffective counsel when his attorney complied with said agreement and refused his instruction to file an appeal. The section arguing that the 6th Amendment wasn’t interpreted to require the state to supply an attorney until beginning in the 1930s is both indisputably correct and simply part of a larger history explaining how we got to the “right to effective counsel” morass that the Court was now extending.
Regardless, the point here isn’t about outcomes so much as about process. Gorsuch will almost certainly side with the conservative bloc more often than Merrick Garland—a well-qualified judge who should have been granted a fair hearing and, absent shocking revelations, confirmed to the seat—would have. Gorsuch is, after all, a card-carrying member of the Federalist Society. But, at least early on, he’s making it clear that he’s neither a rabid ideologue nor a partisan hack. And that’s a very good thing for the integrity of the American judicial system.
The interesting thing that seems to be evolving here is that Gorsuch seems to some extent be taking on the role that Anthony Kennedy on the Court before his retirement. To be sure, Gorsuch will likely prove to be more conservative than Kennedy was on many issues, but he’s also shaping up to be not as conservative as some hoped and others feared when he was nominated and confirmed. One reason for this may be the fact that he clerked for Kennedy early in Kennedy’s term.
It’s way too early to be passing judgement on Gorsuch, who certainly should not be on the court at all. Picked and vetted by a secretive group funded by a pseudo-libertarian billionaire, there is little likelihood that he will seek justice when interpreting the law. Will he sometimes rule against the government? Of course, when he exercises his libertarian leanings and wants to take away protectors from minority or oppressed groups. Will he sometimes rule against the Justice Department? Of course, when he can see a case down the road where such a ruling will allow him to uphold throwing gays out of the military or the right of store owners to put a “No gays served” sign on their door.
The Republican justices have shown in Bush v. Gore that they will ultimately put their party and social loyalties over the interests of the country. Scalia was regularly the guest of the most right wing wealthy while he was hearing cases that affected them or the groups they funded. Thomas, well Thomas is the most partisan justice in living memory, perhaps ever.
So sure, Gorsuch and Kavanaugh may occasionally scratch some conservative itch other than screwing a person accused of a crime whenever possible. But if they had anything other than ingrained deference to their social betters they would never have been given the nod by the billionaire funded Federalist Society.
I’ve worked for a couple of really toxic bosses. Every now and again they’d do something right and I’d ask myself if they were really as bad as I thought. Turned out they were.
Haven’t we seen this before? The election of individuals to the Supreme Court who end up taking up positions different from their pre-SCOTUS stances?
I think it’s because once elected to SCOTUS, Justices are always conscious that they may end up going down in history as a modern Judge Taney.
I will admit that I’ve been surprised by some of his stances.
But I think it’s still too soon to know for sure.
But yes, I’m surprised by Gorsuch.
Justice Boof, not so much.
Looks like SCOTUS slapped the government down regarding the citizenship question on the census.
@Daryl and his brother Darryl:
Well the Justice Boof Court just OK’d gerrymandering…so I guess let’s not go overboard in our praise for Gorsuch.
They did deal a defeat to Dennison on the Census Question…thanks to Robert’s joining the logical side…so a mixed bag.
Ha Shocker! The 5 republican justices just ruled that republican gerrymandering is A-OK!
During the Kavanaugh hearings, I read excerpts from both Kavanaugh’s and Gorsuch’s yearbook (they went to the same private school). Gorsuch came off as something of a nerd, which in the context of being a Supreme Court Justice is a good thing.
My biggest objection to him was always the fact that he wasn’t Merrick Garland.
@Teve:
I should wait for Doug’s post about the decisions today, but my understanding is that the Court didn’t punt, rather they took the ball away and told everyone to go home.
So when, not if, Democrats gain control of a state, they can return the GOP’s favor, and there’s nothing they can do about it.
You know, the Roman Senate functioned, to some extent, on the principle of collegiality. Consuls would heed the Senate’s “advice,” because after their one-year term limit, they’d find themselves back in the Senate dispensing it(*).
Things are not as clear-cut today, but states can change their political colors as the population changes and as the parties themselves change. It’s slow, uncertain, but it happens. So eventually it will be Republicans complaining about partisan gerrymandering.
And it will serve them right.
(*) Mostly in the early era of the Republic. Later on, consuls tended to receive pro-consular governorships for a few years after their term, before going back to the Senate.
@Kathy:
Nah. When the Dems attempt this the Republican Justices will suddenly discover a new point of law that makes this one case an exception…
@Kathy:
The amount of people it would take to flip some red states wouldn’t be considered a big city elsewhere in the country. They’re counting on empty space and existing allegiances but climate change might screw them all. If blue state folks have to flee the coasts, all those empty plains ain’t gonna be so empty anymore. Hell, if the Big One hits and SoCal needs to evacuate from nature’s redecorating, we’d get like 3 new blue states overnight!
Gerrymandering only works if the people it holds stay static in their affiliations. There’s a lot of assumptions there for the GOP to cling to. Their house of cards may hold for now but it’s still a house of cards.
@Daryl and his brother Darryl: Reading the WAPO article I’m not sure Roberts agreed to anything more than that Commerce needs to provide a better set of lies. And he may be doing it to allow claiming the stated legislative reasons for wanting Trumpski’s tax returns are insufficient.
@Daryl and his brother Darryl:
They didn’t okay gerrymandering so much as say that doing so for partisan reasons is outside the scope of the Supreme Court’s authority. I tend to think they’re right, even though I hate the outcome. And it wasn’t a partisan case: the North Carolina legislature favored Republicans and the Maryland legislature favored Democrats. Which is what legislatures dominated by one party have done since time immemorial.
@James Joyner:
I disagree with your analysis. Gerrymandering is to Republicans what creating the Bantustans were for South African whites, and for much the same reason. While any political party may engage in unethical acts, the Republicans depend on the disenfranchisement of minorities and city dwellers to hold onto their power. It is no accident that the five Republican justices supported it.
@MarkedMan:
I think this overstates the case but, yes, gerrymandering benefits Republicans more just given demographics.
@MarkedMan:
I honestly don’t think this broke down on partisan grounds but rather philosophical ones. Liberal judges are simply more outcome-based whereas conservative judges are more rule-based. I find the outcome here undemocratic but tend to agree with the majority that partisan gerrymandering is not only permissible but essentially baked in—and that deciding when it has gone too far puts the judiciary in an untenable position. [Doug’s working on a post on this decision; let’s move the discussion there when it goes live.]
@James Joyner:
So stopping the recount in FL in 2000 was within their authority, but gerrymandering isn’t?
Sorry – doesn’t pass the giggle test.
@James Joyner:
“Liberal judges are simply more outcome-based whereas conservative judges are more rule-based.”
An explanation which founders on the reality of cases like Bush v. Gore and Shelby County v. Holder.
@Daryl and his brother Darryl: @Moosebreath: Bush v Gore was a hot mess because there wasn’t a single, controlling opinion. But the notion that the rules of the game can’t be changed post-hoc, which is what the Florida Supreme Court had done, had been set in stone by Congress going back to the 1880s.
@James Joyner:
We will have to agree to disagree here. I think Republican justices are much more outcome based than liberal or progressive ones.
Look, every decision that comes to the Supreme Court has plausible arguments on either side. If we are to look at the bias of a justice we have to look at their general trend. If you take each case and ask “is there any way in which I can say they weren’t biased?” then, sure you can spin any individual decision. But this is similar to the decades long argument about whether the Republican Party was racist or not. Could there possibly be a reason other than blatant pandering to racists that Reagan chose to kick off his campaign in Philadelphia, MS and talk about states rights? Well then we have to give them the benefit of the doubt. And they get that benefit the next time, and the next and the next. Until Trump comes along and the “good people on both sides” comment yanks the disguise off completely.
The Supreme Court had its Trump moment in Gore v. Bush, when the Republicans stopped the vote re-count in Florida and took it upon themselves to award the presidency to their guy. Their equivalent to “good people on both sides” was “we will put some kind of rationalization down on paper here but will explicitly say that it can never be used as precedent”. That was a while ago but since then in every major decision that would have affected the fortunes of the Republican Party, the Republican Supremes have “thought long and hard” and every time concluded that the decision that favored their party was the right one.
@MarkedMan:
That’s simply not true. Hell, they—correctly in my view—rebuked the Trump Commerce Department on the citizenship question today even though they could easily have come up with a perfectly valid reason to rule for it. Had they ruled the other way, they could quite possibly have taken away a few Democratic seats for the next decade. And, under other circumstances, I think they might have: it’s almost certainly within the Administration’s prerogative to put that question on the Census, as others have done in the past. Yet because the Administration so flouted the legal processes for going about it, they got slapped down. Good for the Court, good for the country, and bad for the GOP.
@James Joyner :
To be fair, it’s really *really* difficult to rule for the citizenship question when that word is explicitly not used in the relevant Constitutional section while still pretending to be even remotely Constitutional in your ruling. It was *very* deliberately not used in the original for a reason: if you only count citizens, you can’t count slaves as well as other minorities. It says “persons” and makes a distinction between free and not so it’s pretty clear they wanted inclusion, not exclusion. They wanted to include slaves, women, immigrants and everyone else because that’s how representation worked – states like Virginia that had a low population of “citizens” but a high population of “persons” didn’t want to get screwed out of power by their own racism.
It’s delightfully ironic that the whole point of this question – to exclude brown people they feel will dilute their numbers – gets defeated by the original logic that came about because some asshats wanted to own black people but still wanted them to count to boost their numbers. That’s called karma, y’all.
@James Joyner: Fair enough. I will concede that there are limits to the amount of blatant lying, incompetence and shenanigans that Chief Justice Roberts will accept. The other four Republicans, not so much. Look James, this one was obvious and yet despite that four of the five Republican justices still put their partisan interest above that of the nation. This should have been 9-0 (or more realistically, 8-1 since Thomas has completely decoupled himself from the law).
[Edit: I see that KM’s post above perfectly captures why this should have been an easy 9-0]
@KM: @MarkedMan:
The Census has since time immemorial gone far, far beyond its original purpose of simply counting heads and into collecting statistical data useful for various governmental and research purposes. Aside from a handful of extreme strict constructionists, I’ve never heard anyone argue that this is unconstitutional.
The citizenship question was included for years without, so far as I can tell, any Constitutional challenge. Now, I happen to think that we know enough about polling at this point to know that inclusion will hamper the original purpose of the Census by driving away people who ought legitimately be counted. But I’m not sure that the Constitution speaks to that.
The problem here is simply that—as with so many other actions taken by this administration—it was done hamhandedly without the slightest regard for the Administrative Procedures Act or other legal and procedural requirements. And they compounded their error here by blatantly and repeatedly lying about how they got here. Otherwise, they’d likely have gotten away with it.
@James Joyner: Looking narrowly, I think your take on the Commerce case today is correct. The court didn’t make the blatantly political decision, precisely because the Chief couldn’t countenance it. That leaves 4 other justices who were perfectly willing to make the outrageously partisan call, even though Roberts can’t quite stomach it.
This is not a good look. This is a court that is, on many cases, highly political. This has happened before, and will happen again, for sure.
@Jay L Gischer:
The better test, I think, would have been a similar case with a Democratic President. Here, Thomas, Alito, and company bent over backwards to say “it’s none of our damned business how the Executive goes about doing the things it’s legally authorized to do.” There’s a strong, conservative case to be made for that reasoning. But if they apply it only when there’s a Republican President and circumvent it when there’s a Democrat, yes, it’s incredibly partisan.
@James Joyner:
“But if they apply it only when there’s a Republican President and circumvent it when there’s a Democrat, yes, it’s incredibly partisan.”
Which gets us back to Shelby County v. Holder.
@Moosebreath:
I think SCOTUS got that one right. The selective application of the law to only a handful of states was always Constitutionally dubious but SCOTUS had repeatedly granted waivers. But Roberts et al were right: a preclearance formula based on 1975 wasn’t reasonable. Essentially, they said that Congress needed to base it on evidence of current discrimination, not discrimination that occurred four decades ago—and cited evidence from the briefs that many of the states actually had less racial disparity in voting patterns than states not subject to pre-clearance. Alas, the extant Congress is broken and isn’t going to revisit the issue.
@James Joyner:
I think what has occurred since the decision came out shows that the only reason there wasn’t evidence of current discrimination was the pre-clearance procedures, as once they were struck down, many of the states which had been subject to pre-clearance rushed in to find discriminatory policies to enact.
@James Joyner:
I can’t say this absolutely for certain, but until around the 1930s or so, before immigration quotas and restrictions, it was common for many immigrants, mostly from Europe, not to obtain citizenship for many years, or at all. three was no drive to deport them, and at the time the US had a very open immigration policy. As I understand it, if you didn’t have a contagious disease or a criminal record, you were in.
So asking the question then is very different from asking it now.
Too many keystrokes wasted here. Gorsuch is calling them as he sees them within a bounded judicial philosophy. The right may not like some; the left may not like some. But he’s a rational guy. Live with it, or get yourself appointed.