Neil McGill Gorsuch (August 29, 1967) is an Associate Justice of the Supreme Court of the United States. Gorsuch is a proponent of textualism in statutory interpretation, originalism in interpreting the U.S. Constitution, and is an advocate of natural law philosophy.
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- This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose. In constitutional litigation, too, experiments and pilot programs — real-world laboratories in which ideas can be assessed on the results they produce — are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.
- Liberals’N’Lawsuits (February 7, 2005)
The Future of Assisted Suicide and Euthanasia (2006)
- Princeton: Princeton University Press. All quotes are from the 2006 hardcover edition.
- In fact, the insight of the double effect doctrine is not remotely theologic. As Justice Oliver Wendell Holmes, himself a frequent utilitarian critic of relying on intent, observed, "even a dog distinguishes between being stumbled over and being kicked." Of course, the question remains why should we, as a secular matter, care more about consequences that are intended versus those that are not? What wisdom, if any, lies behind this distinction? Justice Holmes' homespun illustration suggests the beginnings of an explanation. To kick a dog intentionally- to choose to hurt the animal- says something about the kicker, his or her way of interacting with animals and, perhaps, human beings- in short, it tells us at least something about the kicker's character and beliefs, about who the kicker is. By contrast, as Holmes seemed to recognize, watching a person trip over the dog tells us far less about who that person is or about the person's character or beliefs.
- p. 55
- The self-defining nature of intended actions can be illustrated by the case, developed earlier in this chapter, of the drivers who hit the child in the street. In one instance, we considered the driver who comes upon a child darting into the street. The driver hits and kills the child by accident. In doing so, the driver indubitably effects an awful result- the consequences he brings about are terrible and, as a result, we may censure and punish the driver. But we may very well treat him differently from another driver who intentionally hunts down the child with her car. For this latter driver, we may say that no punishment is harsh enough. What undergirds the difference in our reaction to the two drivers? It is the difference in their self-definition, volition, choice. The hunting driver expresses herself to the world through her actions, defines who she is and what she believes, in a very different way than the accidental driver. Thus, what really illuminates the darting child hypothetical and ones like it are not arguments over causation but an assessment of human intentions.
- p. 55-56
- The morally defining nature of intentions can be further illustrated by any number of choices we make in daily living. Most of us might be said, for example, to "allow" the poor in our cities and towns to go hungry because we fail to do enough to help them- spending our time and our money in other pursuits, such as family and friends. We may even fully forsee or know that our failure to do more for the poor will mean that some persons will go hungry. While our choices in such cases indubitably say something about who we are, they do not say the same thing about us as would plotting intentionally to starve others. To seek out to starve another person is to endorse that objective, intelligently choose it, and freely will it. By contrast, the occurrence or nonoccurrence of unintended side effects, even ones we foresee as absolutely inevitable (as with the hungry person left unfed), necessarily say less about our success or failure in effecting our free will and intelligence in the free world.
imply put, we live as human beings in a world where we must make choices and take actions that, even when entirely legitimate and good, necessarily harm or damage or impinge upon other goods. And this happens at both the individual and the societal level. In choosing to spend a weekend with family, it may unavoidably mean that some persons in the soup kitchen will go hungry. In choosing to spend additional money on a prescription drug care program that primarily benefits the elderly, we as a society may know with crystalline clarity that we will not be able to increase spending on education for the young. With so many varied and diverse goods to pursue in this life, we cannot help but make choices in pursuit of legitimate and upright aims that also entail inevitable, if unwanted, negative consequences for other instances of human goods.
- p. 56
- In contrast to unintended consequences, intended acts are always within our control, subjects of our free will and choice. Because we can always choose to refrain from doing intentional harm to others- because our purposeful actions are within our control- our intentional choices necessarily reveal more about our character and individuality than any unintended side effect ever can. To disregard whether or not an act is intended would be, thus, in a very real way to disregard the role of free will in the world- leaving, for example, those who fail to assist charities that feed the hungry open to censure and penalties as those who would starve such persons.
Precisely to avoid such acts of injustice in implicit recognition of commonsense (nontheologic) moral power of the double effect insight, secular American criminal law has long calibrated different levels of responsibility and punishment based on different levels of mens rea. The purposeful killer is considered for lethal injection while the individual who kills in self-defense, foreseeing death as a consequence but intending only to stop the aggression, may receive no punishment at all. The driver who speeds with reckless disregard for the consequences to others but without any intent to harm the darting child may receive jail time but is often treated far differently from the depraved killer who sets out witha purposeful plan to murder the child. The one who disregards the hungry and homeless may not command respect and admiration, but he or she is not subjected to the same penalties as one who deliberately harms such persons.
- p. 56-57
- Much public debate over assisted suicide and euthanasia both in the U.S. and abroad has rested on the implicit premise that requests for assistance in dying are closely linked to pain. But a great many facts have now amassed running counter to this supposition- the Dutch euthanasia regime has moved away from any requirement of physical or psychological suffering; Oregon has never required a showing of pain of any kind; clinical studies continue to suggest that modern palliative techniques, if disseminated and practiced by knowledgeable doctors, are able to address pain in most, if not all, circumstances; Oregon's annual reports and repeated Dutch surveys suggest that pain simply is not a leading reason motivating patient demands for euthanasia or assisted suicide; there has now long persisted a suggestive correlation between divorce and requests for assisted suicide. And now comes the Journal of Clinical Oncology study suggesting that the major motivation behind assisted suicide and euthanasia is not a poor prognosis but depression.
- p. 225
- Of course, the movement for legalizing assisted suicide and euthanasia is at least in part the result of a culture increasingly influenced by strict neutralist concepts of autonomy, itself perhaps the byproduct of the baby boomer generation heading into old age... But when it comes not to defending an abstract "right to die" but to making the very concrete and personal decision whether to die, it seems that something more basic may be in play. We have known since Jefferson's time that old-fashioned suicide is often motivated by mental ailments, depression foremost among these. Yet contemporary assisted suicide and euthanasia advocates have long denied that depression plays any meaningful role in assisted suicide and euthanasia requests. The findings in the Journal of Clinical Oncology now point to a contrary conclusion, suggesting that the desire to seek out any early death at the hands of a doctor is itself not so much the result of a dispassionate and cool response to a poor prognosis as it is the product of diagnosable and treatable depression.
- p. 225
- Of course, trying to separate the sacred from the secular can be a tricky business—perhaps especially for a civil court whose warrant does not extend to matters divine.
- It seems well past time to reconsider our sweeping UPL [Unauthorized Practice of Law] prohibitions. The fact is nonlawyers already perform — and have long performed — many kinds of work traditionally and simultaneously performed by lawyers. Nonlawyers prepare tax returns and give tax advice. They regularly negotiate with and argue cases before the Internal Revenue Service. They prepare patent applications and otherwise advocate on behalf of inventors before the Patent & Trademark Office. And it is entirely unclear why exceptions should exist to help these sort of niche (and some might say, financially capable) populations but not be expanded in ways more consciously aimed at serving larger numbers of lower- and middle-class clients. . . . Consistent with the law of supply and demand, increasing the supply of legal services can be expected to lower prices, drive efficiency, and improve consumer satisfaction.
- "Access to Affordable Justice: A challenge to the bench, bar, and academy" Judicature ("The Scholarly Journal for Judges"), Autumn 2016, Volume 100, Issue Number 3, page 49.
- I immediately lost what breath I had left. And I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears.
- Gorsuch describing his reaction after receiving a cell telephone call while skiing informing him that Supreme Court Justice Antonin Scalia had died. Quote from "In Judge Neil Gorsuch, an Echo of Scalia in Philosophy and Style." The New York Times. January 31, 2017.
A Republic, If You Can Keep It (2019)
- New York: Crown Forum. All quotes are from the 2019 hardcover first edition.
- Courage has been essential to the rule of law in this country from the beginning. The Declaration of Independence itself was, at heart, a complaint that the king had denied colonists the rule of law. As justification for their rebellion, colonists cited the fact that the king had withheld assent to duly enacted legislation, refused trial by jury, and prevented colonists from playing a significant role in their own governance. About half of the fifty-six colonists who signed the Declaration were lawyers. They quite literally put their lives on the line to secure a representative government and one of just laws: By signing the declaration, they became marked men who faced certain death if their cause failed.
- Speech to students at Drake University Law School in Des Moines, Iowa on 16 August 2018, p. 181-182
- Courage remains as important in the legal profession today as it was then. Throughout our history lawyers who have made the greatest mark on this country haven't done so because they were smarter or were born into better families or held more important positions; it was because they were willing to stand firm for justice in the face of immense pressure and often at grave personal costs.
- Speech to students at Drake University Law School in Des Moines, Iowa on 16 August 2018, p. 182
- What do I mean by courage? Well, let's start with what I don't mean. I don't mean blind bullheadedness or rudeness or incivility. We have all too much of those things in our culture and in our profession. They are pretenders of courage, not the real thing. For true courage will often require you to admit a mistake, hold your tongue, or wait to fight another day. When it requires you to stand up against the powers arrayed around you, it will also require you to do so with not just respect but affection for your fellow citizen. What I mean by courage is what Atticus Finch meant by it in To Kill a Mockingbird. You may remember that Finch defended an African-American man wrongly accused of raping a white woman in Alabama during the Great Depression- and that in taking on the representation he faced criticism and threats from his friends and community. As he told his daughter in the book: "I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand. It's when you know you're licked before you begin but you begin anyway and see it through no matter what."
- Speech to students at Drake University Law School in Des Moines, Iowa on 16 August 2018, p. 182-183
- Whether you serve ultimately as a lawyer or judge, I hope as an officer of the court all the same you will help explain these virtues to your clients, your family, and your friends. In popular culture, we often see people deriding judges who issue unpopular rulings or lawyers who represent unpopular clients. We see those who confuse a judge's ruling or a lawyer's representation with support for the person's cause or personal favoritism or bias. They suggest that when a judge rules for a corporation, he loves corporations. Or that when a lawyer represents a criminal defendant, he loves criminals.
Attacks like these miss the mark. They misunderstand completely the role of judge and lawyer. I hope you will help remind those you encounter that if they want to secure their own liberty from oppression, they should want lawyers and judges who are unafraid to follow the law where it leads and enforce the law fearlessly, without bending to the passing whims and wishes of public opinion. For one day, too, you might remind your friends, they could find themselves braced against the prevailing winds of the day, in need of a lawyer and facing a judge. And when that day comes, I hope you will ask them, would they rather stand before a court of public opinion or a court of law?
- Speech to students at Drake University Law School in Des Moines, Iowa on 16 August 2018, p. 190
- I ask my kids every semester when I teach ethics. I finish the semester by asking them to spend five minutes writing their obituary. They hate it. They think it is corny, and it might be a little corny. And then I ask them if they will volunteer to read some of them, and when they do, it always becomes clear people want to be remembered for the kindnesses they showed other people. And what I point out to them- what I try to point out- is that it is not how big your bank account balance is. Nobody ever puts that in their draft obituary, or that they billed the most hours, or that they won the most cases. It is how you treated other people along the way that matters. And for me, it is the words I read yesterday from Increase Sumner's tombstone [see page 321]. And that means as a person I would like to be remembered as a good dad, a good husband, kind and mild in private life, dignified and firm in public life. I have no illusions that I will be remembered for very long. If Byron White is nearly forgotten, as he is now and said he would be, I have no illusions that I will last five minutes. That is as it should be.
- During Gorsuch's confirmation hearing for his nomination for Associate Justice of the United States Supreme Court in March 2017, p. 322-323
- But as a judge looking back, the most you can hope for is you have done fairness to each person who has come before you, decided each case on the facts and the law, and that you have just carried on the tradition of a neutral, impartial judiciary. That is what we do. We just resolve cases and controversies. Lawyers are supposed to be fierce advocates, and I was once a fierce advocate for my clients. But a judge is supposed to listen courteously and rule impartially.
- During Gorsuch's confirmation hearing for his nomination for Associate Justice of the United States Supreme Court in March 2017, p. 323
- On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.
- Where this court once stood firm, today it wilts.
- Oklahoma v. Castro-Huerta, 597 U.S. ___ (2022), Dissenting Opinion (June 29, 2022], on narrowing the 2020 decision in McGirt v. Oklahoma. As quoted in: "Justice Neil Gorsuch Is a Committed Defender of Tribal Rights" by the New York Times Adam Liptak on June 15, 2023. Archived from the original on June 29, 2023.
- Often, Native American tribes have come to this court seeking justice only to leave with bowed heads and empty hands. But that is not because this court has no justice to offer them. Our Constitution reserves for the tribes a place — an enduring place — in the structure of American life.
Quotes about Gorsuch
- The tall, square-jawed Gorsuch, distinguished by a full head of gray hair and Ivy League credentials, was perfect for a new president drawn to central casting choices.
- Joan Biskupic, Nine Black Robes: Inside the Supreme Court's Drive to the Right and its Historic Consequences (2023), New York: William Morrow, first edition hardcover, p. 24
- Earlier Supreme Court candidates, including John Roberts, had been vetted by the Federalist Society, but Gorsuch, who entered law school only after the society had penetrated campuses, was the first GOP appointee to have been steeped fully in its culture. By the mid-1990s, the organization had developed an entrenched network, playing a major role in judicial selection and helping to screen candidates for top GOP administration slots. After serving as a law clerk to Justice Byron R. White, a fellow Coloradan, and simultaneously for Justice Anthony Kennedy, Gorsuch worked as a top aide in the Justice Department during the Bush administration, for fourteen months, before his Tenth Circuit appointment in 2006. Over his nearly eleven years on the appellate court, Gorsuch espoused the "originalist" approach, reading the Constitution in terms of its eighteenth-century understanding, a practice widely associated with Scalia and tracing years earlier to Robert Bork, a Yale law professor and U.S. appellate court judge whose own 1987 Supreme Court nomination was defeated in a historic Senate battle. Gorsuch had gone fly-fishing with Scalia in 2014 on the Colorado River and had kept an inscribed photograph from the outing.
Gorsuch's nomination appeared to reinforce Trump's vow to appoint justices who would reverse Roe v. Wade, as Gorsuch's record suggested opposition to abortion rights. In his book The Future of Assisted Suicide and Euthanasia, published in 2006 by Princeton University Press, Gorsuch argued against such practices and emphasized the "inviolability" of human life.
- Joan Biskupic, Nine Black Robes: Inside the Supreme Court's Drive to the Right and its Historic Consequences (2023), New York: William Morrow, first edition hardcover, p. 26-27
- A separate Gorsuch decision from the Tenth Circuit drew the harshest scrutiny and lived on, even in Gorsuch's retelling. A truck driver whose trailer broke down in subzero temperatures had unhitched the rig and temporarily left it behind as he became numb in the cold. His employer fired him for leaving the trailer. The Tenth Circuit majority found that the driver should have been protected by federal worker-safety law. Judge Gorsuch dissented, emphasizing that the employer had told the driver to wait for help and finding that his claim fell outside the worker-safety law's plain meaning. Minnesota Democratic senator Al Franken mocked the result as "absurd" and pressed Gorsuch about what he would have done under the circumstances. "Senator, I don't know, I wasn't in the man's shoes," Gorsuch said.
- Joan Biskupic, Nine Black Robes: Inside the Supreme Court's Drive to the Right and its Historic Consequences (2023), New York: William Morrow, first edition hardcover, p. 34
- The Supreme Court just announced a new, vague category of businesses that have a constitutional right to discriminate against anyone for any reason they like. I’d like to explain to you what the law is now. I can’t do that, because it can’t be done.
303 Creative v. Elenis concerned Lorie Smith, who owns a graphic design firm. She wants to expand her business to include custom-designed wedding websites, but she opposes same-sex marriage on religious grounds. So she won’t design sites for same-sex weddings and wants to say that on her own promotional website. But the Colorado Anti-Discrimination Act (CADA) bans businesses that are open to the public from discriminating against gay people or announcing their intent to do so. She sued the state, seeking a preemptive ruling that this law couldn’t be applied against her.
Supreme Court Justice Neil Gorsuch, writing for the majority, agreed: First Amendment free speech means that law may not “compel an individual to create speech she does not believe.”
He relied on a 1943 case holding that schoolchildren could not be compelled to say the Pledge of Allegiance, in which the court said that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”
The analogy is strained. The children could not possibly avoid the compulsion to say the pledge, but no one is required by law to operate a business that is open to the public. Now, however, some of those businesses can discriminate against potential customers or clients. Which ones? It depends on how expressive they are. How can courts decide that? Where is the line?
- Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, "The new, mysterious constitutional right to discriminate", The Hill, republished by MSN, 30 July 2023
- Faced with what he called a “sea of hypotheticals about photographers, stationers, and others,” Gorsuch conceded that “determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions.”
But, he wrote, no one disputes — indeed, the parties stipulated — that “Ms. Smith seeks to engage in expressive activity.” But everything humans do expresses something. In an earlier case, Masterpiece Cakeshop v. Colorado, Gorsuch joined an opinion by Justice Clarence Thomas saying that food preparation (selling a wedding cake) was sufficiently expressive that the seller had a right to discriminate.
Justice Sonia Sotomayor wrote in her dissent that “A website designer could equally refuse to create a wedding website for an interracial couple. … A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for ‘traditional’ families. And so on.”
Gorsuch doesn’t respond. It will take years of litigation to find out what “expressive” means. The fact that the parties stipulated that one business is expressive does not entail that “expressiveness” is a workable test for courts. What if the parties had stipulated that some websites are blessed by angels?
- Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, "The new, mysterious constitutional right to discriminate", The Hill, republished by MSN, 30 July 2023
- Gorsuch’s decision also repeatedly cites a strange, silly statement in the poorly reasoned decision of the Tenth Circuit, which Smith was appealing from. That court, after acknowledging that there is a risk of excising some ideas from the public dialogue, said that “Eliminating such ideas is CADA’s very purpose.” Gorsuch calls this a “finding,” even though courts of appeals are not permitted to find facts (that is the trial court’s job) and this one wasn’t found by the trial court or stipulated by the parties.
He then accuses Sotomayor’s dissent of “approving a government’s effort” to accomplish that purpose. A law is invalid if it seeks to accomplish an impermissible end. His claim implies that all antidiscrimination laws are unconstitutional in all their applications. He doesn’t mean that, of course. More mystery.
- Gorsuch has developed a habit of misattributing purposes to statutes and then complaining that the purposes either were bad ones or were being pursued in a discriminatory way. His own concurrence in Masterpiece presented a convoluted misinterpretation of Colorado’s simple requirement that one treat all customers alike, in order to claim that people whom the law didn’t even mention were thereby treated unfairly.
Now he claims that “Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” This is just false. Colorado wasn’t trying to force anyone to do anything. Smith sued the state, aggrieved by what she thought it might do sometime in the future.
On the one hand, the decision might be interpreted narrowly, to apply only to businesses that take specific commissions for unique artwork. On the other hand, the free speech theories floated in Masterpiece, to which Gorsuch was sympathetic, were so broad that they would protect absolutely any discrimination, or for that matter any other conduct, that a court wanted to protect.
Gorsuch’s casual way with inconvenient facts, and vague statements of the law, suggests that we can’t be confident of what just happened. The court, however, is supposed to tell us what the law is, not just hand opaquely reasoned victories to every conservative Christian who walks in the door.
- Samuel Alito
- Amy Coney Barrett
- Stephen Breyer
- Ketanji Brown Jackson
- Elena Kagan
- Brett Kavanaugh
- Sonia Sotomayor
- John Roberts
- Clarence Thomas