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Why Neil Gorsuch’s Politics Matter Far Less Than His Legal Analysis


In the 1993 film “The Firm,” Tom Cruise’s character Mitch McDeere is a hot-shot young lawyer, the top of his class at Harvard, who gets hired by a firm that does work for the mob. When Mitch discovers this, he hatches a plan to expose the firm—not for its mafia ties, but for overbilling. In one of the final scenes, Mitch tells an FBI agent, “You want to know something funny? You actually made me think about the law. I managed to go through three years of law school without doing that.”

Of course, real lawyers think about the law all the time. You don’t graduate from Harvard and pass the bar, like Mitch did, without thinking deeply about the law. U.S. Supreme Court justices think about the law probably more than anyone does, which is why the “conservative” and “liberal” labels we often apply to them aren’t very helpful. Framing the court in binary ideological terms might allow the media to cover Supreme Court cases like sporting events, but it’s not very helpful in assessing how a nominee might change the court’s balance.

Within a half-hour of President Trump’s announcement of Neil Gorsuch to fill the seat vacated last year by the death of Justice Antonin Scalia, protesters appeared outside the Supreme Court. Some of them, touting printed signs that read “Stop” with Gorsuch’s name written in marker, were clearly planning to protest no matter who Trump picked. Others seemed quite certain of how Gorsuch would rule on a host of issues.

Setting aside that Gorsuch, who was unanimously confirmed by the Senate in 2006 for the Tenth Circuit Court of Appeals in Denver, is eminently qualified to serve on the Supreme Court, many of those protesting his nomination are making a common mistake in the way they think about Supreme Court justices and the work of the court in general.

Simply put, the Supreme Court doesn’t usually fall neatly into “conservative” and “liberal” camps. It’s not the Senate, and political party affiliation—or the political party of the president who nominates a justice—isn’t always a good predictor of how any given justice will decide a case. Justice Anthony Kennedy, for example, was appointed by President Reagan but is known for swinging between conservative and liberal positions. Although he has upheld greater restrictions on abortion (siding with conservative justices), in 2015 he famously penned the majority decision in Obergefell v. Hodges, which legalized same-sex marriage.

The Court Doesn’t Usually Split Into Political Camps

But cases like Obergefell—a 5-4 decision on a major constitutional question—are rare. They make up only a small fraction of the cases that come before the court. Most cases are more opaque, dealing with procedural, administrative, or statutory questions. It’s stuff the average reader might find a bit boring, like federal maritime law. For the vast majority of the court’s business, facile assumptions about how supposedly conservative or liberal justices will view the law through partisan lenses aren’t very helpful—or predictive.

Consider Arizona v. Gant, a 2009 case that dealt with whether police have authority to search a person’s vehicle after an arrest, even if that person is not in the vehicle (a Fourth Amendment question). The majority was Stevens, Scalia, Thomas, Souter, and Ginsburg—a coalition of conservative and liberal justices who all agreed that a warrantless vehicle search is only allowed “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” In other words, the decision went against the police. Dissenting were Alito, Roberts, Breyer, and Kennedy—two conservatives and two liberals.

Conventional wisdom suggests conservatives will side with law enforcement and liberals, being more wary of police abusing their power, will rule against them. But as Arizona v. Gant shows, that’s not always the case. How would Gorsuch fit into that case? Gorsuch is conservative in many ways, but he appears to have a broad view of the Fourth Amendment. He argued in one dissent that police might be barred from entering a home or coming onto a porch if “No Trespassing” signs are posted.

Or take a case like Texas v. Johnson, a famous 5-4 decision about flag-burning and the First Amendment. The majority was Brennan, Marshall, Blackmun, Scalia, and Kennedy. Dissenting were Chief Justice William Rehnquist along with justices White, O’Connor, and Stevens. Here, the conservative-liberal frame was meaningless.

The question at the heart of the 1989 case was whether states could pass laws prohibiting the desecration of the American flag. The plaintiff in the case, Gregory Lee Johnson, was (and still is) a left-wing activist, the sort of guy most conservatives would despise. At the 1984 Republican National Convention in Dallas, he joined a protest that got out of hand. Demonstrators destroyed property, threw beers cans and dirty diapers, and marched on Dallas City Hall, where someone handed Johnson an American flag that had been stolen off a flagpole. He doused it in kerosene and set it on fire while the crowd chanted, “America, the red, white, and blue, we spit on you, you stand for plunder, you will go under.”

If one didn’t know about Scalia’s deep devotion to the First Amendment, one might suppose he wouldn’t have much sympathy for Johnson’s behavior. Likewise, one might think Johnson’s case would find sympathy with a liberal-leaning justice like John Paul Stevens, who, although he didn’t think the First Amendment protected flag-burning, generally defended students’ right to freedom of speech in public schools.

There are many other cases like Texas v. Johnson and Arizona v. Gant that up-end popular expectations of how justices think about the law. There will of course from time to time be cases that conform to popular notions of conservative and liberal politics. But more often than not, our Supreme Court justices, like Mitch McDeere, actually think about the law.