A careful review of his personal history and decisions affecting criminal law may give us some insight as to how Judge Gorsuch would rule as a Supreme Court Justice.
Nominated in 2017 by President Trump to replace Justice Antonin Scalia, Gorsuch was appointed to the 10th Circuit Court of Appeals by President George W. Bush in 2006. He is a graduate of Harvard Law, a Marshall Scholar at the University of Oxford, and has clerked for Justice’s Byron White and Anthony Kennedy. Turning 50 in 2017, he is young, an energetic and clear writer, and has ideological beliefs that mirror Scalia’s own.
Gorsuch, like Scalia, is considered a textualist, meaning he interpretes the law based on the ordinary meaning of the statute, without regard to the legislative intention, the issues or social remedies the law is meant to provide, or even the fundamental justice or fairness that the judicial interpretation could address. A broad and simplistic definition of this philosophy as it relates to the United States Constitution is often spoken as “originalism,” or reliances on the original meaning of the Constitution as the founders intended at the time it was written.
When it comes to criminal law, Gorsuch’s opinions paint him as an individual who is assuredly consistent with his philosophical beliefs. The same ideology of strict textualism favored by Judge Gorsuch is found in his opinions regarding criminal law. Contrary to most people’s definition of “conservative” as a social construct, Gorsuch will often favor the defendant over the government when interpreting statutes. The prosecution often finds itself on the wrong side of conservatism in his Court, as he will hold the Government to every element of a criminal statute, including notice or “mens rea.” From United States v. Games-Perez, 667 F.3d 1136, Gorsuch writes:
“For current purposes, just stating Capps‘s holding makes the problem clear enough: its interpretation—reading Congress’s mens rea requirement as leapfrogging over the first statutorily specified element and touching down only at the second listed element—defies grammatical gravity and linguistic logic.”
Any potential Supreme Court Justice nomination creates a healthy debate among both politicians and citizens. No matter your political views, Gorsuch’s qualifications are not in dispute, as he is a well respected intellectual. Whether he will be elevated to the highest court in the United States or not is a political question beyond the scope of this writer. However, the top rated trial lawyers at Garrett, Walker, Ayocth and Olson respect and will defend the free speech of every individual, no matter where on the political spectrum they fall.