Supreme Court nominee Neil Gorsuch has repeatedly favored extending greater power to states, counties, towns and American Indian tribes, according to an Associated Press review of his appeals court opinions and other writings and speeches.
The judge on the Denver-based 10th U.S. Circuit Court of Appeals has railed, often eloquently, about what he views as government overreach, sometimes by the courts themselves. He has promoted instead the concept of federalism, which favors states’ powers to run their own affairs. He has frequently dissented from his court’s majority when it sought to impose federal authority over other governing bodies.
President Donald Trump‘s nomination of the 49-year-old Gorsuch has drawn cheers by conservative groups that view him as fulfillment of Trump’s campaign promise to appoint a conservative to the high court. If confirmed by the Senate, Gorsuch would take the seat occupied by Justice Antonin Scalia until his death a year ago. Democrats, civil rights groups, and advocates of gay and abortion rights have widely panned the selection.
Over the years, Gorsuch has argued for a federal hands-off approach toward an e-commerce tax in Colorado, for letting Oklahoma use state law to bar convicts from arguing their lawyer was ineffective, and for tribal jurisdiction over crimes on Indian lands in Utah.
“Federal courts aren’t free to intervene in any old dispute and rule any way they wish,” he wrote in 2014. He was dissenting from the appeals court majority when it allowed a federal challenge to the Colorado voter-approved law requiring public approval of new taxes. The court majority based its objections to the tax on the Guarantee Clause of the U.S. Constitution, which says that the federal government must guarantee “a republican form of government” in the states.
In a 2015 case, he added that the federal government should exercise “diffused and divided power, the better to prevent its abuse.”
Gorsuch has also bemoaned what he sees as overuse of the court system itself. He has voiced frustration that it too often operates at a snail’s pace and at unjustifiable costs.
“No doubt our complex and consuming litigation wringer has assumed the shape it has so courts might squeeze as much truth as possible out of the parties’ competing narratives,” he wrote in a 2015 decision upholding the right of the Ute Indian people to prosecute tribal members accused of crimes on Ute territory. “But sooner or later every case must come to an end.” The argument hasn’t ended: the Utah city of Myton asked last month for a review by the U.S. Supreme Court.
In a 2013 speech, Gorsuch described the law itself as confusing and bloated: “And what happens to individual freedom and equality — and to our very conception of law itself — when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”
His writings have long reflected a deep respect for powers of the states.
As an undergraduate at Columbia University, he founded a newspaper called The Federalist Paper. And in 1991, long before he became a judge, he co-wrote a law review article defending state-imposed term limits on elected officials.
Many of his court rulings have also lifted up state over federal law. In a 2015 majority opinion, Gorsuch opened the door to restoring a jury verdict reached under state law giving landowners hundreds of millions of dollars for improper handling of nuclear weapons waste at the Rocky Flats site in Colorado. In this case lasting a generation, he also lamented “staggering delay and (no doubt) equally staggering expense the parties endured here.” The settlement with landowners finally gained preliminary approval last year.
Gorsuch wrote the majority opinion in 2007 that denied motorists’ claims over Oklahoma’s rules for specialty license plates. The motorists claimed the rules made it harder for them to display messages for abortion rights than pro-life slogans. In the same case, though, the ruling did let a reproductive rights group advance its claim of unfair funding by the state.
In yet another dissent in 2009, Gorsuch argued against interfering with an Oklahoma court ruling against two prisoners convicted of murder. He said the majority’s ruling “winds up treating state courts less like instruments of sovereign governments and more like federal agencies.”
Gorsuch’s work displays a belief that federal agencies too often overstep their authority. In an immigration case last year, he questioned the decades-old doctrine giving judicial deference to the way federal agencies interpret laws. He wrote that these principles “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”
Then he added: “Maybe the time has come to face the behemoth.”
Alexander “Sasha” Volokh, a professor at Emory University School of Law in Atlanta, said Gorsuch’s views on the power of federal agencies could be particularly important with Trump in the White House.
“For anyone who is concerned about abuses of power under Trump,” he said, “that sort of person would really welcome a theory that would limit how much authority the agencies would have to say what the statutes mean.”
Republished with permission of the Associated Press.