He has been compared to the Supreme Court justice he would succeed, Antonin Scalia, and the justice for whom he worked, Anthony Kennedy. Yet Neil Gorsuch offers an intriguing contrast to the man who sits at the center of the raised mahogany bench: Chief Justice John Roberts.
Gorsuch and Roberts were prep school boys who compiled glittering resumes. They developed lively and effective writing styles that stand out in the stuffy world of law. And both have plainly set out to make a difference with their brand of conservatism.
The Supreme Court’s conservative wing is already fractured. If the Senate confirms Gorsuch, a looming question is whether these two polished jurists would find common ground or end up rivals on the right.
This could make a difference in upcoming years as President Donald Trump likely makes multiple Supreme Court nominations and presses his agenda. How the justices on the right work together — or apart — could determine rights related to abortion, religion and race.
More broadly at stake are the relative powers of the three branches of government, from domestic dilemmas over environmental protection and consumer welfare, to global concerns at the forefront with immigration and refugee policy.
No matter where Gorsuch lands on the ideological spectrum among conservatives, he would guarantee Roberts the broader control he lost when Scalia died last February. If US appeals court judge Merrick Garland, whom President Barack Obama nominated to succeed Scalia, had been confirmed, America’s highest court would have undergone a historic shift to the left. Roberts would have become a rare chief justice presiding over a bench on which his ideology was not the majority’s.
Similarities
In the East Room of the White House Tuesday night, Gorsuch struck themes that recalled Roberts’ debut as a nominee of President George W. Bush in 2005.
Gorsuch, 49, a native of Colorado, extolled the vast West, noting that the Denver-based 10th Circuit on which he serves covers about 20% of the continental US and 18 million people.
Roberts, age 50 when appointed and 62 now, referred during his confirmation process to the “endless fields” of his home state, Indiana.
On a public stage, each speaks humbly and with wit, as when Gorsuch referred to the late Justice Byron White, a football legend from Colorado, as “the only justice to lead the NFL in rushing.”
Both grew up in privilege, attended preparatory high schools and earned Harvard law degrees. Gorsuch worked in the George W. Bush Justice Department, Roberts in the Reagan and George H.W. Bush Justice Departments.
They each dwelt at prestigious Washington law firms, Roberts longer as a star appellate advocate who eventually, with his deputy US solicitor general position, argued a total 39 cases before the high court. Gorsuch, appointed to the 10th Circuit in 2006, has been an appellate judge for more than a decade; Roberts served only two years on the US Court of Appeals for the District of Columbia Circuit.
Throughout his 2005 Senate confirmation, Roberts invoked the umpire metaphor, saying a judge’s job was “to call balls and strikes, not to pitch or bat.”
Gorsuch similarly said Tuesday that the role of a judge is “to apply, not alter” the law.
“A judge who likes every outcome he reaches,” Gorsuch asserted, “is very likely a bad judge.”
Differences
Both jurists, in fact, cast themselves as more moderate than their court opinions reveal.
And for all their surface similarities, Gorsuch rules more like Scalia than like Roberts. He is more rigidly conservative and appears less likely to consider how a ruling would play out in ordinary life — or the public eye.
Gorsuch has adopted the Scalia approach of looking to the Constitution as it was understood in the 18th century and adhering to the plain text of a federal law. Gorsuch would go further than Roberts to hem in federal regulators responsible for public health and safety.
He also might be readier to strike down Roe v. Wade, the 1973 milestone that made abortion legal nationwide. Trump has vowed to appoint justices who would reverse Roe.
In his 2006 book, “The Future of Assisted Suicide and Euthanasia,” Gorsuch argues against those practices and emphasizes the “inviolability” of human life.
Roberts, to be sure, has voted against abortion rights and compiled a conservative record on religion, race and other social issues.
But he has also demonstrated concern for the court’s institutional reputation that does not similarly preoccupy fellow conservatives. Most strikingly, Roberts separated himself from his brethren on the right in 2012 when he joined the four liberal justices to uphold President Barack Obama’s health care overhaul.
Where Gorsuch fits in the conservative wing
Even when all the conservatives vote together on a bottom-line judgment — which they do more often than not — they often splinter in their legal rationales. The current four (Roberts, Kennedy, Clarence Thomas, Samuel Alito) span a wider ideological spectrum than do the court’s four liberals (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan).
At one end is the more centrist Kennedy cautiously weighing each case; at the other is the staunch originalist Thomas who would readily overturn precedents he believes conflict with the Constitution as understood in the 18th century.
Thomas, as well as Alito, might ideologically align with Gorsuch more than they do Roberts.
Unlike the justice he would succeed, Gorsuch could be more persuasive with Kennedy, for whom he was a law clerk in 1993-94.
Scalia often attacked Kennedy’s legal reasoning and derided him as pretentious. In 2015, Scalia denounced Kennedy’s exalted appeal to constitutional liberty at the opening of his opinion declaring a right to same-sex marriage. Dissenting, Scalia said if he ever joined an opinion that began that way, “I would hide my head in a bag.”
Sarcasm is not Gorsuch’s signature — which ultimately could make him more of a force in moving the court, and America, to the right.