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Justice Thomas vs. Justice Gorsuch

Recently, I noted that Justices Thomas and Gorsuch had voted consistently with one another. I wrote:

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.

This was both encouraging and discouraging. It was encouraging because it suggested that Gorsuch was an originalist. But it was discouraging since it might have suggested that Gorsuch (or Thomas) were not independent thinkers. Over the years, I have encountered very smart “couples” who believe that they agree with one another on every issue. I have always been uncomfortable with that. Given the complexity of the world and the differences between people, if two people agree on every issue, that suggests they are coordinating rather than independently arriving at their conclusions.

But we need not be worried about Thomas and Gorsuch any more. Recently, Justice Thomas and Gorsuch have disagreed in three important cases. Their disagreements have been fascinating. The disagreements have not come from one of the justices compromising their originalist principles. Instead, they have largely come from different views of the original meaning. Here I discuss two of the cases, leaving the third, Patchak v. Zinke, for another time.

One of the cases is Sessions v. Dimaya, which involved the void for vagueness doctrine applied to deportation. (Void for vagueness doctrine holds void certain statutes on the ground that they are excessively vague and therefore do not provide adequate notice.) The plurality decision by Justice Kagan employed the usual nonoriginalist approach that applied precedent but did so in a way that promoted liberal results. Justice Gorsuch provided the fifth vote for that result, but did so on originalist grounds. Gorsuch argued that “the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution.” By contrast, Justice Thomas challenged Gorsuch’s defense of the void for vagueness view, claiming that neither the best reading of due process allowed it, nor a second best reading that Gorsuch relied upon.

Oil States Energy Services v. Greene’s Energy Group is another of the cases. Oil States involved whether “inter partes review, which authorizes the United States Patent and Trademark Office to reconsider and cancel an already-issued patent claim in limited circumstances,” is constitutional. This review was challenged on the ground that it allowed an administrative agency to decide traditional questions involving private rights, which Article III of the Constitution requires courts to adjudicate. This is an important issue, since it concerns to what extent adjudications can be placed in administrative agencies rather than courts.

Justice Thomas wrote the majority opinion, which held that the review could be placed in an administrative agency. Thomas relied upon traditional precedent allowing so called public rights to be placed in administrative agencies. Gorsuch dissented, arguing that courts had to hear “the traditional actions at common law that were tried by the courts at Westminister in 1789” and that patent lawsuits were such actions.

In the end, I am not entirely sure how I stand on these three cases. My initial, tentative takes are with Gorsuch on each of them, although it might turn out that Thomas is right about one or all of them. These agreements and disagreements about originalism of the two justices are a great development — not only for originalism but for constitutional law generally.

Reader Discussion

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on May 01, 2018 at 11:25:35 am

Mike:

"By contrast, Justice Thomas challenged Gorsuch’s defense of the void for vagueness view, claiming that neither the best reading of due process allowed it, nor a second best reading that Gorsuch relied upon."

Can you expand upon your take on Thomas take on the best and 2nd best readings.

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gabe
on May 01, 2018 at 11:44:38 am

I am a Supreme Court geek, and I follow Scotusblog faithfully when it is releasing opinions. My take, after reading both of these cases, is that I have to side with Gorsuch on both decisions.

In the Sessions v. Dimaya case, Thomas may well be right that the void for vagueness doctrine is not compelled by any reading of the Due Process clause. But then again, any principled application of the non-delegation doctrine - insisting that the legislative power is delegated to Congress, and may not be delegated by Congress to an alphabet soup of administrative agencies - would not allow anything remotely resembling our present administrative state. In that regard, void for vagueness serves as a backstop to the emasculated non-delegation doctrine, preserving at least some semblance of a reasonable notice requirement when Congress is too lazy to write statutes which clearly describe just what conduct is prohibited.

In the Oil States Energy case, I was frankly disappointed with Justice Thomas ready acceptance of the public rights doctrine, a judicial fabrication without any basis in the text of the Constitution. He basically ignored the lessons of Stern v. Marshall on the structural importance of an independent judiciary, a structural protection which might well be MORE important, not less, when the Government is on the other side. This case might have been an ideal vehicle to drive a stake through the heart of that abomination. AND, the Gorsuch dissent was, in my opinion, much better reasoned on the historical foundations of patent rights and the importance of Article III protections when the government is seeking to divest property rights.

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Daniel Artz
on May 01, 2018 at 12:32:41 pm

It's interesting that he chose 1789, the date when the Constitution was implemented, rather than 1788, the date when the dispositive ninth state ratified. I would think that 1788 was the appropriate date, as any changes at Westminster after that year would be post-ratification--and thus obviously not on the minds of the ratifiers whose Article VII assent made the Constitution a constitution rather than a mere proposal.

One could of course plausibly argue that "the traditional actions at common law that were tried by the courts at Westminister in 1789” was an inappropriate formula insofar as American governments ceased looking to Westminster's example at some time prior even to 1788--perhaps 1776. (If one chose 1776, he would have to bear in mind that Virginians traditionally dated their independence to May 15, not July 4.)

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Kevin Gutzman
on May 01, 2018 at 13:15:44 pm

It looks like Gorsuch is gonna' be a Brennan, Douglas, Warren and Souter, all rolled into one.

I find particularly bizarre his assertion that US courts must hear all of the English/British actions at common law that were heard at Westminster in 1789. I notice that Gorsuch is not relying on the Judiciary Act of 1789 so why 1789? Why not 1783 or 1775 or 1620 or 1603?

Is Gorsuch such a legal formalist that he cannot imagine any useful tribunal that does not involve unelected and unaccountable Art. III judges?

Madison hated the idea of incorporating all of the common law into US law and the Constitution and, in fact, law in the colonies had been developing independent of England since Jamestown was founded. For the first 60 years of its existence, the Bay Colony absolutely refused to allow any case to be appealed to the Crown and in the Declaration of Independence many of Jefferson's long train of abuses involved British meddling with provincial courts and provincial legislation.

There is also the sense that he is making a self-serving fetish out of Art. III judges.

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EK
on May 01, 2018 at 14:28:56 pm

“Unelected and unaccountable Article III judges”? As opposed to unelected Administrative Law Judges appointed by Agency heads, dependent upon political appointees for their jobs, and accountable not to the people but only to unelected politicians with their own agendas. The whole point of Article III was to protect Americans from a judiciary accountable to and dependent upon the sovereign. Remember the Amistad incident, during which the young Spanish Queen simply could not understand why an American President couldn’t simply order his judges to rule as he wanted them to rule. Do you really think such a system preferable? Yet the whole public rights doctrine is premised on just such a system - if you have a dispute with the IRS over your income taxes, the IRS can force you to litigate that in the Tax Court, where judges appointed by (and removable by) the Department of the Treasury get to decide your fate.

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Daniel Artz
on May 01, 2018 at 14:38:23 pm

So litigate that issue on the basis of Article III, Section 1.

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Kevin Gutzman
on May 01, 2018 at 15:35:11 pm

I must say that the reaction of some on the right is wholly disproportionate to both the effects of the decision and of Gorsuch's reasoning. Clearly, a case can be made for Gorsuch's treatment and respect for the "vagueness doctrine". The dissemination of Legislative imposed obligations must be readily understandable to all subject to those obligations. this is basic and a fundamental underpinning of consent properly understood. Is this derivative of Due Process, as Gorsuch asserts? or is it to be found elsewhere. ( I support his decision with a specific reservation.) In any event, Gorsuch's reasoning is not entirely out of the mainstream, of either left or right jurisprudence and not without precedent. Reasonable observers may concur with or deny the reasoning - but it surely is no cause for alarm; nor does it put Gorsuch in the camp of Warren, Souter, etc. This is hyperbole and more appropriate to the *reasoning* (such as that is) usually advanced by left wing analysts.

As to effect, it ought to be noticed that the possibility exists, if properly pursued, of an eventual dismantling of the Administrative State and the ersatz Judicial Power that these agencies have arrogated to themselves.
A long shot - perhaps! But a possible crack in Chevron, Auer and the diluted non-delegation doctrine under which we presently suffer.

Let us wait and see what comes of this and the Good Justice!

My objection to the decision is simply this:

Had Gorsuch conditioned his decision with something like the following: Yep, vagueness prevails, but why ought we to apply this to a non-citizen?

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gabe
on May 01, 2018 at 15:47:04 pm

Is there a constitutional or legislative bright line that distinguishes ALJs from Art. III judges? Rappaport may know but he hasn't brought that up in this series of posts about the evils of ALJs and the glories of Art. III judges. There may be but I don't know.

ALJs may be unelected but they are certainly more accountable to Congress and the electorate than are Art. III judges. Besides,

I'm not sure there is any constitutional difference between ALJs and Art. III judges. Both hold their offices "on good behavior" and I'm not aware of any instance that any class of federal civil servants has ever had their compensation reduced, although individual reductions in grade do happen. I'm sure there is a Supreme Court decision on point here but I suspect it is also a self-serving decision.

I am, however, aware of instances where ALJs have been removed for not "good behavior" without the annoyance of impeachment in the House and conviction in the Senate.

Your history is weak. The judges of both your young Spanish Queen and the King of England sat at the pleasure of the sovereign in the 1840s as they did in the colonies prior to 1774. I wonder why Gorsuch did not entrain that in his musing about the tribunals sitting at Westminster and the glories of the English/British common law.

Further, in the same decade, the wonderful Judge Story held in Prigg v. Pennsylvania that any state could enslave a person and thereafter no one but the slave's owner could set that slave free. Art. III judges seem to be something less than you imagine.

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EK
on May 01, 2018 at 18:45:52 pm

I’m going to guess that you are not a lawyer, AND that you have never read Article III of the Constitution. You certainly have never read Stern v. Marshall.

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Daniel Artz
on May 01, 2018 at 21:19:20 pm

These are interesting cases and I tend to be in most agreement with Mr. Gabe & Mr. Artz. I would very much like to hear Prof. Rappaport's take on Patchak v. Zinke, so I hope to see a follows-up with it soon; In my view, Gorsuch (& Kennedy) joining Robert's dissent, got this one right.

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Paul Binotto
on May 02, 2018 at 15:28:47 pm

The snarky reference to Kagen's opinion as promoting liberal results from non originalism reasoning fails to acknowledge the precedent relied on, Johnson, was a purely Scalia idea.

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scott tilsen
on May 02, 2018 at 15:30:29 pm

Just cutting to the chase here, my suggestion is that if an appointment does not require the advise and consent of the Senate, then the appointee is not an officer of the United States and can be removed by the head of an agency or the president without the necessity of impeachment. My further suggestion is that ALJ are not officers but Art. III judges are.

Finally, Art. III allows Congress to create inferior tribunals without limiting language.

Read Art. II §2 carefully, I don't see anything that precludes Congress from appointing Art. III judges of general jurisdiction who become officers of the US upon confirmation by the Senate and ALJs of limited jurisdiction who are not subject to the advise and consent of the Senate. Further, I don't see anything Art. III that prevents ALJs from hearing and deciding any matter expressly delegated to them by Congress. This would fall under the "with such Exceptions and under such Regulations " of Art. III, §2.

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EK
on May 02, 2018 at 15:50:52 pm

We'll have to wait and see if your analysis holds up in Lucia; we should know in a couple months. I hold a contrary opinion about ALJ's, the one held by the petitioner.

I am sure you know that the Petitioner Lucia and many of his Amici believe not only that ALJ's at the SEC are "officers", but that they are, under their current "non-officer" status, more susceptible to succumbing to undo influence from the SEC Administrators than they would be if they were "officers" and subject to political pressures.

www.scotusblog.com/case-files/cases/lucia-v-securities-exchange-commission/

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Paul Binotto
on May 02, 2018 at 17:14:30 pm

I think you are misreading Article III. First, under Section 1 of Article III, it is pretty clear (to me at least) that ALL of the judicial power is delegated exclusively to the Supreme Court and such inferior courts as Congress may establish, BUT ONLY if the judges of such courts have the protections provided by Article III, Section 1: (a) appointment by the President; (b) confirmation by the Senate; and (c) life tenure (or during “good behavior”). Any judge that does not satisfy those criteria simply cannot exercise “the judicial power” of the United States. Second, the “with such Exceptions and under such Regulations” language of Article III, Section 2, deals ONLY with Congressional control over the appellate jurisdiction of the Supreme Court. The Court has repeatedly recognized that Congress may proscribe its appellate jurisdiction. Nothing in that sentence authorizes Congress to delegate any part of the judicial power to non-Article III tribunals such as ALJs.

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Daniel Artz
on May 02, 2018 at 17:36:19 pm

Gabe commented as follows: “Yep, vagueness prevails, but why ought we apply this to a non-citizen?”

I would suggest that that is simply the natural result of relying upon the Due Process clause of the 14th Amendment, as opposed to the Privileges and Immunities Clause. There is a rarely observed but important distinction between the Constitution’s guarantees of Due Process and its guarantees of the Privileges and Immunities, both of which appear in two places in the Constitution. In Article IV, Section 2, the Constitution guarantees to the CITIZENS of the United States all of the Privileges and Immunities of the CITIZENS of the several states. In the 14th Amendment, the guaranty of Privileges and Immunities is likewise limited to CITIZENS. BUT, in the two places in the Constitution in which guarantees of Due Process appear, the 5th and 14th Amendments, that guaranty is extended to all PERSONS, not just CITIZENS. If you read the debates in Congress over the 14th Amendment, a pretty solid case can be made that the intent of the Privileges and Immunities Clause was to extend the protections of the Bill of Rights to the States. But such a reading of the Privileges and Immunities Clause was emasculated in the Slaughterhouse Cases. So, when the Court finally was ready to incorporate the protections of the Bill of Rights into the 14th Amendment and make those guarantees applicable to the States, it could either overrule the Slaughterhouse Cases, or look elsewhere. It chose to do the latter, and invented the rather bizare concept of “Substantive Due Process.” See Justice Thomas’s concurring opinion in McDonald v. City of Chicago, where he suggests that the Court ought to abandon the absurdity of “substantive due process”, overrule the Slaughterhouse Cases, and return to the Privileges and Immunities Clause as the proper means of accomplishing incorporation.

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Daniel Artz
on May 02, 2018 at 17:59:09 pm

I think there are those who would argue that what you call, the "rather bizarre concept of “Substantive Due Process" wasn't invented so late, or that there is anything really to be afraid of in “Substantive Due Process.” But, relying solely on Privileges and Immunities may very well accomplish what you suggest.

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Paul Binotto
on May 02, 2018 at 21:23:04 pm

Daniel"

You are correct, I did not *catch* myself until the 6th hole of my disastrous golf outing today.
Yep, it does apply to PERSONS - not citizens - as much as I would wish that COTUS had a separate category for *denizens* as did the old Brits!

My bad!

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gabe
on May 02, 2018 at 21:23:48 pm

Now that IS interesting!

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.