Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.
Justice Gorsuch So Far
It has now been almost a year since Neil Gorsuch was confirmed as a Supreme Court Justice. Based on his behavior so far, what can say about how he is likely to write and vote in the future? And in particular what can we say about his position on originalism?
One significant aspect of his opinions and votes have been striking. In the 19 cases since Gorsuch has been on the court, he has voted with Justice Thomas – the Court’s most originalist justice – in every one of them. When Justice Thomas dissents, Justice Gorsuch joins the dissent. When Justice Gorsuch concurs, Justice Thomas joins the concurrence. The two even agree on joining the entire majority opinion, except for a single footnote.
Of course, most of these decisions have not involved constitutional interpretation, but some of them do. And – for better or worse – there tends to be a strong predictive content to decisions across areas of law. While it is still early, this evidence suggests pretty strongly that Justice Gorsuch is no Justice Souter or Chief Justice Roberts and could be another Justice Thomas.
The evidence that Justice Gorsuch is a strong originalist is also supported by some of his comments at oral argument. For example, Justice Gorsuch has asked skeptical questions about the originalist basis of decisions that allow the court to review legislative redistricting. Similarly, at oral argument, Gorsuch has sought to link protection under the Fourth Amendment to property rights, which might turn out to be in accord with the Amendment’s original meaning.
Republican nominees have often been disappointments for originalists. So it is natural to ask why Justice Gorsuch might turn out to be a strong originalist. One possible explanation is the claim that the Trump Administration has outsourced the selection of judicial nominees to the Federalist Society. While this is a possible explanation, there are reasons to question it. The Federalist Society also had significant influence over earlier nominations, with prominent members approving of Justice Souter, Justice Alito, and Chief Justice Roberts, none of whom is a strong originalist.
A different explanation is generational. Those three Justices all went to law school in the pre- or proto-originalist era. They did not read opinions written by Scalia in law school. Gorsuch did. Gorsuch might also have read Scalia and Thomas opinions when he was in graduate school. Moreover, the originalism that existed in his early years as a lawyer was a more popular and attractive originalism than the originalism that existed when those other justices were young lawyers. Thus, it would not be surprising that Gorsuch would be willing to tie his reputation to originalism in a way that Roberts has not.
Overall, then, Justice Gorsuch’s behavior so far has been very promising. His opinions, votes, and statements at oral argument suggest a strong originalism and an overall approach similar to Justice Thomas’s. It is still early days, but so far things look very good.