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April 7, 2017

Now that we have Justice Neil Gorsuch, what will be his first notable sentencing vote or opinion?

As reported here by the Washington Post, this morning, the "U.S. Senate confirmed Neil M. Gorsuch to serve on the U.S. Supreme Court, capping more than a year of bitter partisan bickering over the ideological balance of the nation’s highest court." Here is more about what comes next:

Gorsuch is expected to be sworn-in in the coming days, allowing him to join the high court for the final weeks of its term, which ends in June. It’s likely he will want to be sworn-in quickly — even if a ceremonial event is held later — so that he can get to work.  The court is scheduled to meet Thursday for a private session to decide whether to accept or reject a long list of cases that would be heard next term. And the last round of oral arguments for this term is scheduled to begin in just 10 days, on April 17.

Justice Samuel A. Alito Jr. is the most recent justice to have been confirmed during a Supreme Court term. He was sworn-in the same day as his confirmation, and a ceremonial event with President George W. Bush was held the next day.

I do not believe there are any sentencing cases on the SCOTUS docket for its last round of arguments later this month, but there are a few notable criminal procedures case including a couple involving ineffective assistance of counsel issues.  It will be interesting to see how Justice Gorsuch approaches oral argument and decision-making in these early cases.

April 7, 2017 at 12:02 PM | Permalink


What seems likely is that he will only participate in cases where he is present at oral argument or as necessary to break a tie.

Posted by: federalist | Apr 7, 2017 1:06:21 PM

I preferred an even number of Justices to reduce those 5-4 decisions, and to have lower court decisions hold, but without infecting national policy with toxic stupidity.

Gorsuch will be another Kennedy, another Roberts, a turncoat to avowed and advertised principles.

He is from Colorado. He will soon acculturate to our Babylon, gayer than San Fran, and the rent seeking capital of our nation.

Posted by: David Behar | Apr 7, 2017 2:04:07 PM

Gorsuch seems to be less statist than Roberts.

Posted by: federalist | Apr 7, 2017 2:50:07 PM

A list of the cases still to be heard:


There are a few with a criminal justice aspect; see, e.g., Davila v. Davis.

Not overly surprised about any justice in recent years (even Souter really). Gorsuch's agency sentiments have been cited, but he will (surely by merely following the law) likely more often than not find the conservative argument wins. Some exceptions will apply. He will also join Roberts and Alito regarding executive power over enemy combatants and similar questions. The conservative support of less government on certain questions has been noted on this blog.

The net lesser 'statism' will remain to be seen. My overall sentiment is that his primary supporters know their business. They rooted for him for a reason.

Posted by: Joe | Apr 7, 2017 3:03:03 PM

Overall I believe that Gorsuch will be more in line with Souter than Scalia when it comes to legal views and legal interpretation. Where he will be more Scalia-like is issues surrounding the culture wars. That's what I think based upon his past case decisions. But if life has taught me anything it is that there is not a one-to-one correspondence between what the underling does when he/she is an underling and what he/she does when they become the boss. Put differently, it is one thing to follow precedent it is another thing to make it.

As for criminal law my instincts are that he is likely to favor the criminal defendant on constitutional issues but not so much on sentencing issues. I don't think he is any friend of the guidelines, though.

Posted by: Daniel | Apr 7, 2017 3:41:52 PM


I think the idea of Gorsuch as less statist than Roberts depends on how one defines that term. When I perused his opinions the overall impression I was left with is the Gorsuch is what I would call a "judicial maximalist". He views the judiciary, not Congress, as the primary bulwark against an encroaching executive. This does not mean, of course, that he sees executive encroachment at every turn and @joe may be right about his views on executive power in the circumstances @joe mentions. What it does mean is that when Gorsuch does see executive encroachment he is not likely to be content to leave it up to Congress or to the state legislatures to push back, he will very much be an "activist judge". One thing that is perfectly clear about his writings up to this point is that he is no fan of state's rights in the way that conservatives typically define that term.

So in my view it is not a question of more or less statist but rather that Gorsuch simply wants a different balance of power among the various players. How that will play out in specific cases I don't dare guess from this distance.

Posted by: Daniel | Apr 7, 2017 3:54:49 PM

WEll I guess we will see. LOL.

Posted by: federalist | Apr 7, 2017 6:54:18 PM

All Harvard grads are assholes. All are statists. Example? George W. Bush. Blew up the size of government, of the Register of Federal Regulations, of taxes, of federal departments. Went on a nation (state) building rampage. Dick Cheney came from U of Wyoming. However, he was admitted to Yale University, thus is an honorary statist asshole.

Posted by: David Behar | Apr 8, 2017 12:03:44 PM

"Souter than Scalia when it comes to legal views and legal interpretation"

In a broad sense, yes, but I would replace Alito. Alito and Sotomayor, curious as it might be to some, sort of have the same general approach. One liberal, one conservative. Still, there is a reasonable call to think Gorsuch will be more assertive in his judicial approach, especially once he gets comfortable.

(For example, Souter seemed a bit more conservative in his first year or two.)

Posted by: Joe | Apr 8, 2017 12:06:48 PM

Hello, Joe. Can you tell the class the fraction of your income that comes from the state?

Posted by: David Behar | Apr 8, 2017 12:54:46 PM

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