On a few issues, Trump’s nominee for the Supreme Court, Neil Gorsuch, is not abominable. But overall, he is cut from the same cloth as Antonin Scalia, and is likely not a man we can count on to cast the deciding vote for liberty from the bench.
Freedom of Religion
He has made a name for himself as a champion for “religious liberty” which is code for allowing discrimination under the guise of religious belief. In Hobby Lobby Stores v. Sebelius, Judge Gorsuch joined the majority in the 10th Circuit in holding that corporations are persons exercising religion for purposes of the Religious Freedom Restoration Act and that the Affordable Care Act contraceptive-coverage requirement was not enforceable as to the corporation. The Supreme Court affirmed that decision. “The result of the Hobby Lobby decision has been disastrous,” said Larry Decker, Executive Director of the Secular Coalition, “granting business owners an unprecedented power to impose their personal beliefs on employees and setting a dangerous legal precedent that elevates religious belief above the law.”
According to SCOTUSBlog, “Gorsuch has also written or joined opinions … that have criticized doctrines that limit religious expression in public spaces. In Summum v. Pleasant Grove City, in 2007, Gorsuch joined a dissent from denial of rehearing en banc in a case in which the 10th Circuit had limited the ability of the government to display a donated Ten Commandments monument in a public park without accepting all other offers of donated monuments.”
Radley Balko, who writes on policing and civil liberties for the Washington Post was opines that Gorsuch isn’t a disaster on the Fourth Amendment:
On the Fourth Amendment, Gorsuch’s record is also encouraging, particularly for a nominee from a president with Trump’s blustery law-and-order rhetoric. Despite his reputation, Scalia was often very good on the Fourth Amendment. Gorsuch’s limited record at least suggests that he’d continue in that vein. In United States v. Carlos, he wrote a dissent to a majority opinion holding that police did not violate a suspect’s Fourth Amendment rights by approaching and knocking on his door despite several “No Trespassing” signs prominently posted on the property.
In United States v. Ackerman, Gorsuch argued that when the National Center for Missing & Exploited Children searched a man’s laptop, it was acting as a government agent. Even though the search turned up child pornography, Gorsuch found that search unconstitutional.
Gorsuch doesn’t have a long record here, but a few cases unearthed by David at the Center for Competitive Politics support media freedoms against claims of defamation or invasion of privacy. Gorsuch also ruled against a Colorado law limiting campaign contributions, because they were applied unequally to third parties. His opinion argued that “a state cannot adopt contribution limits that so clearly discriminate against minority voices in the political process without some “compelling” or “closely drawn” purpose – and Colorado has articulated none.”
Although some libertarians are touting Gorsuch as a foe of “overcriminalization,” it appears that he aims most of his fire not at the criminal code, but on regulations that address everything from food safety to environmental protection, financial protection, and labor rights. But George Mason University law professor Ilya Somin argues that
Judge Gorsuch also deserves praise for his rulings emphasizing that criminal law should be interpreted narrowly, and ambiguities resolved in favor of defendants. In an age where the scope of federal law has grown extraordinarily broad and almost anyone might inadvertently run afoul of it, it is more important than ever that we enforce the traditional legal principle that no one should be subject to punishment unless the law clearly and unequivocally forbids what they did.
In Wilson v. City of Lafayette, Judge Gorsuch held that a police officer was entitled to qualified immunity from an excessive force claim arising from his use of stun gun that killed a young man. The officers had approached the man ―near an area known to be used‖ to grow marijuana. After the man admitted the plants were his, he fled, and the officer deployed his taser. Judge Gorsuch reasoned that the use of force was reasonable because ―[defendant] was resisting arrest by fleeing from officers after they identified themselves—even if the crime of which he was suspected was not itself a violent one, he was likely to be apprehended eventually, and he hadn’t harmed anyone yet.
On the death penalty, Gorsuch is “very unlikely to make the court any more solicitous of the claims of capital defendants,” according to Scotusblog.