“We have to STOP the next Trump nominee!” says a pop-up solicitation on People for the American Way’s website. Before you rush to “donate now,” you might want to consider the organization’s assessment of Trump’s last Supreme Court nominee.
“Far from being a fair-minded constitutionalist,” PFAW says, Neil Gorsuch “has proven to be a narrow-minded elitist who consistently votes in favor of corporations and the powerful.” The gap between that description and Gorsuch’s actual performance on the Court speaks volumes about the blind partisanship of Trump critics who care more about scoring political points than defending civil liberties.
PFAW is echoing the criticism of Democratic senators who worried, before Gorsuch was confirmed in April 2017, that he was not inclined to stand up for “the little guy.” Gorsuch’s record during a decade on the U.S. Court of Appeals for the 10th Circuit belied that claim, and his 15 months on the Supreme Court provide further evidence that he is not shy about defending the principles that protect politically disfavored individuals from the whims of the powerful.
In sharp contrast with the man who nominated him, Gorsuch worries about abuses of the government’s power to take people’s property “for public use.” In June 2017, when the Court declined to hear a case that raised the question of whether a state can impose limits on the “just compensation” it owes for takings under the Fifth Amendment, Gorsuch, joined by Clarence Thomas, urged his colleagues to address that issue at the “next opportunity.”
That pairing was notable because Gorsuch is on record as admiring Justice Clarence Thomas’ passionate dissent from the widely condemned 2005 decision in which the Court approved the use of eminent domain to transfer property from one private owner to another in the name of economic development. Big businesses routinely use such arrangements to override the wishes of little people who get in the way of their plans.
On the same day that Thomas joined Gorsuch in calling for closer scrutiny of eminent domain, Gorsuch joined Thomas in dissenting from the Court’s refusal to hear a case challenging California’s requirement that people who want to carry guns for self-defense persuade local police officials that they have “good cause” to do so. Such discretionary carry permit policies favor the rich, famous, and well-connected while preventing ordinary people from exercising the right to bear arms.
Although PFAW never would admit it, Gorsuch also was standing up for the little guy when he sided with the state employee in Illinois who did not want to subsidize the advocacy of a union he never joined, the California crisis pregnancy centers that did not want to provide information about abortion services, and the Colorado baker who did not want to supply a cake for a gay wedding.
In all three cases, the state was using force to impose a majority’s views on a recalcitrant minority.
PFAW does not sympathize with those plaintiffs. But what about the immigrants who can continue to live in this country thanks to the April 2018 decision in which the Court concluded that a law requiring deportation of people who commit “aggravated felonies” was unconstitutionally vague? Gorsuch joined the left side of the Court in that decision, noting that “vague laws invite arbitrary power.”
Although Gorsuch did not join last month’s ruling against warrantless examination of cellphone location records, his dissent went further than the majority opinion in questioning the misbegotten third-party doctrine, which holds that the Fourth Amendment provides no protection for information you share with other people. In an age when “even our most private documents…reside on third-party servers,” Gorsuch asked, “what is left of the Fourth Amendment?”
While I don’t always agree with Gorsuch, it is clear by now that he is far from a knee-jerk authoritarian or slavish defender of moneyed interests. Anyone who portrays him that way has no credibility in commenting on the president’s next choice for the Court.
Jacob Sullum is a senior editor at Reason magazine.
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