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June 27, 2019

Taking more stock of the many shades of Justice Neil Gorsuch in criminal cases

I-dont-always-vote-in-favor-of-criminal-defendants-but-when-i-do-justice-alito-starts-drinking-dos-eIn this post on Monday, fresh on the heels of noticing Justice Neil Gorsuch's notable votes for the claims of federal criminal defendants in US v. Gundy and Rehaif v. US and Davis v. US, I reviewed Justice Gorsuch's interesting and varied votes and role in big contested criminal cases from the SCOTUS docket this Term.  Of course, Wednesday brought another data point via the Court's ruling in US v. Haymond, a case in which Justice Gorsuch provided a key swing vote in a 5-4 ruling for another federal criminal defendant and wrote a potent plurality opinion extolling the importance of the Sixth Amendment jury trial right (basics here).

But lest one let four notable late-in-the-Term votes unduly shape one's view of Justice Gorsuch's approach in criminal cases, Leah Litman has this new Slate commentary designed to make sure nobody comes to think Justice Gorsuch is always channeling the late Justice William Brennan.  The piece is bluntly headlined "Neil Gorsuch Is No Friend to Criminal Defendants," and everyone interested in this topic should read the whole thing.  Here are excerpts:

Writers like to depict him as a friend to criminal defendants; the tone of several pieces even makes it sounds like he is among the most-criminal-defendant-friendly justices on the modern court.  And some commentators who cannot resist the blazing hot countertakes have even suggested that Gorsuch is better for criminal defendants than a Justice Merrick Garland would have been.

Where to start?  Even just a few cases from the Supreme Court’s current term make it clear that Gorsuch is no friend to criminal defendants.  The fact that he rules against the government in some number of criminal cases, and occasionally departs from his more law-and-order conservative colleagues in doing so, does not change that fact.  At most, Gorsuch is as good for criminal defendants as the least-criminal-defendant-friendly Democratic appointee.  That hardly makes him a hero.  On some cases, Gorsuch has played the villain....

It is true that Gorsuch sometimes departs from his conservative colleagues and rules for criminal defendants.  It is also true that his seemingly libertarian instincts lead him to be more friendly to criminal defendants than Justice Brett Kavanaugh....  But all of these examples hardly establish that Gorsuch is a friend to criminal defendants. The fact that his aggressive approach to constitutional law, which largely frees him from the constraints of stare decisis, occasionally leads him to reshape the law in ways that favor criminal defendants should not obscure the many times that he has reached out to reshape the law in ways that would meaningfully harm them.

Notably, Ramesh Ponnuru already has this partial response to this piece at the National Review under the headline "A Gorsuch Made Mostly of Straw." Here is how it closes:

The attention to Gorsuch’s pro-criminal defendant rulings really could create a misleading impression about his jurisprudence generally and it is worth providing a more complete sense of it.  But I am left thinking that Gorsuch’s defenders have mostly not argued for him as a friend of criminal defendants — nor should they have, since a Supreme Court justice shouldn’t approach the kind of cases that come before him with a bias for or against criminal defendants.

My quick take it that Justice Gorsuch is particularly drawn to arguments from defendants (especially federal defendants) that concern the structural elements of the Constitution and our criminal justice system that protect individual liberty.  At the same time, he seems particularly unmoved by arguments made by state defendants (especially state capital defendants) that concern when he may consider "mere" matters of justice administration that can and should be trusted to the states. In this regard, he seems to approach the criminal docket somewhat akin to the Justice he replaced, Justice Antonin Scalia, and that is enough for me to anoint him the most interesting person on the Court in criminal cases (see silly picture above).

What strikes me as particularly interesting for the Court as a whole with respect to its criminal jurisprudence is the fact that the Chief Justice and Justice Brett Kavanaugh seem to becoming the yang to Justice Gorsuch's yin.  In capital cases, Chief Justice and Justice Kavanaugh seem often at least a bit more inclined to vote in favor of a capital defendant (Madison v. Alabama and Flowers v. Mississippi) come to mind, whereas in some of the structural cases they are disinclined to rule for a federal defendant (as in Davis v. US and US v. Haymond).  Interesting times.

Prior related post:

June 27, 2019 at 12:08 AM | Permalink

Comments

You're absolutely correct. And there can be no question that Gorsuch is way better for criminal defendants than Garland. All the extreme capital cases where Garland likely would have voted for the defendant are cases where another conservative voted with the liberals anyway. But Gorsuch has been and will continue to be a crucial fifth vote for defendants in the universe of cases where defendants used to look for Scalia's vote, as well as in some fourth amendment cases where Kennedy's vote used to also be in play, but Kavanaugh's isn't. Mitchell v. Wisconsin would likely have come out the other way had Kennedy still been on the court, for instance. Tl;dr Gorsuch but not Garland will vote for defendants in 5-4 cases.

Posted by: Jacob Berlove | Jun 28, 2019 2:03:20 PM

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