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September 8, 2019

More reason to think Justice Gorsuch might help SCOTUS pioneer criminal justice reforms

Regular readers have seen my regular postings about Justice Neil Gorsuch's notable votes in favor of the claims of federal criminal defendants (some of which I have linked below).  His work to date in criminal cases has me thinking that Justice Gorsuch could be a key vote and important voice helping SCOTUS pioneer many needed criminal justice reforms.  And this new USA Today article, headlined "Supreme Court Justice Neil Gorsuch decries lack of access to justice for many Americans," reinforces my hopefulness in this arena.  Here are excerpts:

Lawyers cost too much. Getting to trial takes too long.  Juries promised by the Constitution are rarely used.  And just try counting all the criminal laws on the books.

Those are among the provocative criticisms made by the Supreme Court's youngest associate justice, Neil Gorsuch, in a USA TODAY interview and his new book, "A Republic, If You Can Keep It."

Gorsuch, 52, is convinced that warning — reportedly issued by Benjamin Franklin after the Constitutional Convention — can be met, and the republic will be preserved. But the problems he observes in the justice system and what he describes as the nation's "crisis in civility" are obstacles he would like to see removed....

The book is, like the justice himself, a study in contrasts.  Folksy and self-deprecating, the court's lone westerner came from Colorado in 2017 with rhetorical guns blazing, amply filling the late conservative Associate Justice Antonin Scalia's seat on the bench.  It took him only two terms to lead his colleagues in dissents.

At the same time, Gorsuch has made peace with the court's liberals, often siding with Associate Justices Sonia Sotomayor and Ruth Bader Ginsburg in defense of the "little guy" being surveilled, accused, tried or convicted of a crime.

Gorsuch doesn't offer solutions for all the problems he identifies in the book.  But he expresses confidence that his judicial methodology — strictly following the words in the Constitution and federal laws rather than his preferred policies — is winning the day.  It's a method decried by many liberals as a means to produce conservative results, to which Gorsuch has a simple reply: "Rubbish!"...

Yet Gorsuch is anything but a go-along-to-get-along guy, as made clear by his expressed desire to fix what ails the nation's justice system.

Most Americans can't afford to hire a lawyer —  "I couldn’t afford my own services when I was in private practice," he writes — nor endure months or years of legal wrangling to reach trial. Too often, he says, defendants are forced to cut a deal with prosecutors or accept a judge's ruling rather than face a jury of their peers.

In a span of seven weeks last term, Gorsuch dissented twice from the court's refusal to hear Sixth Amendment challenges to criminal prosecutions.  One involved evidence he said was not subjected to proper testing and cross-examination.  The other involved a decision on restitution based on findings by a judge, not a jury.  He was joined both times by Sotomayor, perhaps the court's most liberal justice....

Still, Gorsuch has been a reliable member of the court's five-man conservative majority in major cases over the past two terms.  Those include 5-4 decisions upholding Trump's ban on travel from several majority-Muslim nations, barring public employee unions from collecting "fair share" fees from non-members, and removing federal courts from policing even the most extreme partisan election maps.

And when Chief Justice John Roberts joined the court's four liberal justices to deny the Trump administration's effort to add a question on citizenship to the 2020 census, Gorsuch joined the other conservatives in dissent.

During the interview, however, he highlighted cases in which he sided with liberals or when the justices' votes were jumbled beyond ideological explanation.  In most years, he notes, about 40% of cases are decided unanimously.  “Get nine people to agree on where to go to lunch!" he dares his inquisitor.  "It happens through collegiality and hard work and persuasion and thoughtfulness.”

A few prior related posts:

September 8, 2019 at 05:16 PM | Permalink


How do you think his "superseded" jurisprudence from Bucklew might fit into an 8A jurisprudence that requires the least liberty-depriving punishment available a la Benjamin Rush? Cynically guessing the latter is a non-starter no matter how bona fide an originalist argument it may be.

Posted by: John | Sep 9, 2019 1:08:59 AM

I sense Justice Gorsuch is in the "Alito camp" with respect to the death penalty and its administration ---- i.e., he (rightly) believes the Constitution allows states (and the feds) to use death as a punishment AND he (seemingly) is worried that aggressive litigation against the death penalty is creating an undue impediment to states utilizing this punishment. As states have increasing "success" with completing executions, it will be interesting to see if the "Alito camp" will be prepared to scrutinize this punishment (or others) more under the Eighth Amendment. I am not holding my breath, but I am also not giving up on any of the Justices in criminal cases (save perhaps Alito).

Posted by: Doug B. | Sep 9, 2019 2:11:43 PM

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