Below is my column on the end of the Supreme Court term and the one outstanding piece of business: an apology to Associate Justice Neil Gorsuch. After this column ran, Gorsuch again voted with the liberal justices on a critical due process issue. He has already carved out a principled legacy on the Court that follows his convictions rather than the predictions of his critics.
Here is the column:
“In our constitutional order, a vague law is no law at all.” Those are the words that opened one of the most important decisions of this Supreme Court term, in United States versus Quartavious Davis. In a 5-4 decision, the majority sided with a habitual offender in striking down an ambiguous provision that would allow enhanced penalties for a “crime of violence.”
The author of that sweeping decision in favor of criminal defendant rights was Justice Neil Gorsuch, the first nomination by President Trump to the Supreme Court. I testified at his Senate hearing, favoring his confirmation despite unrelenting attacks on him as a “rubber stamp” and an ideologue. Gorsuch has proven his detractors wrong and, as this term has proven, he has emerged as one of the most consistent and courageous voices on the Supreme Court. Indeed, a number of senators and pundits in Washington owe Gorsuch an apology for their attacks on someone who is building a new legacy that could be one of the most lasting on the Supreme Court.
Gorsuch has been fascinating to watch over the last two years. He has departed repeatedly from the right of the Supreme Court to do what he considers to be the right thing. He remains a conservative justice but, like his predecessor Antonin Scalia, he has shown a sense of his own “true north” judicial compass. In doing so, he has often made both the left and right of the Supreme Court seem shallow and predictable in their rigidity.
Consider the decision last week on double jeopardy in Terance Gamble versus United States. At issue was the ability of prosecutors to try to potentially sentence individuals for the same criminal conduct in state and federal courts. Some of us have argued that the “dual sovereignty” doctrine had effectively gutted the constitutional guarantee against double jeopardy. Six justices lined up behind Justice Samuel Alito to dismiss such concerns. The dissent by Gorsuch said, “A free society does not allow its government to try the same individual for the same crime until it is happy with the result. Unfortunately, the court endorses a colossal exception to this ancient rule against double jeopardy.”
Gorsuch joined Justice Ruth Bader Ginsburg in dissenting. He also broke from the conservative wing in upholding Native American rights. Indeed, in the last term of Justice Anthony Kennedy, who was lionized by liberals upon retirement as a principled swing voter, Gorsuch voted with liberal justices on important decisions on surveillance and sentencing. He also joined in key decisions supporting free speech against the government, including the opinion written by Justice Elena Kagan striking down a statute allowing the government to deny trademark protection to names deemed as “immoral” or “scandalous” by the government. Notably, the partial dissenters to this major victory for free speech were Chief Justice John Roberts, Justice Stephen Breyer and Justice Sonia Sotomayor.
The decision in Davis, however, was telling since it pitted Gorsuch once again on the opposite side from another Trump nominee, Justice Brett Kavanaugh. While Kavanaugh also has broken from the right wing of the Supreme Court on occasion, he has continued his record of consistently siding with prosecutors and police. In his dissent, Kavanaugh advanced the logic that worried some of us before his confirmation. In the face of a detailed and dispassionate analysis by Gorsuch, the dissent by Kavanaugh responded at times with what seemed like a string of empty platitudes.
The respective first lines in the two decisions were the most telling. Where Gorsuch emphasized how vague laws effectively gut due process and the rule of law, Kavanaugh declared, “Crime and firearms form a dangerous mix.” The response by Gorsuch was devastating. After laying out how the “crime of violence” has no clear meaning and leaves citizens at the whim of prosecutors, Gorsuch asked, “What does the dissent have to say about all this?” He noted that Kavanaugh simply cites the fact that the statute was used in “tens of thousands of federal prosecutions” for over 30 years and deemed it “surprising” that it should suddenly be unconstitutional.
However, Gorsuch noted that the government admitted that the original meaning was unconstitutional and was itself offering a “surprising” new interpretation to save it. Gorsuch said Kavanaugh and other conservative justices were trying to save an unconstitutional law by “giving this old law a new meaning by appealing to intuition.” Kavanaugh noted, if “you were to ask John Public whether a particular crime posed a substantial risk of violence, surely he would respond, ‘Well, tell me how it went down. What happened?’” Gorsuch answered this, “Maybe so. But the language in the statute before us is not the language posited in the dissenting push poll.”
There remain significant cases to decide this Supreme Court term, including on gerrymandering and a controversial citizenship question being added to the census. I cannot predict how those cases will turn out, but I am certain of one thing, which is that Gorsuch deserves an apology. Many liberal advocates lambasted him despite his stellar reputation as an appellate judge. His actual record was irrelevant to them, and it likely will mean little to them that Gorsuch has now shown more flexibility than certain members in the left wing of the Supreme Court.
At the confirmation hearing for Gorsuch, I told the Senate a story about Justice Oliver Wendell Holmes traveling by train to Washington. When the conductor asked for his ticket, Holmes searched high and low for it until the conductor reassured him, “Don’t worry about your ticket. We all know who you are. When you get to your destination, you can find it and just mail it to us.” Holmes responded, “My dear man, the problem is not my ticket. The problem is, where am I going?” It is an uncertainty that many new Supreme Court justices face. However, I told the Senate, “I can say where Gorsuch is going. He will go wherever his conscience takes him, regardless of whether it proves a track to the left or the right.” That is precisely where Gorsuch has ended up. He is moving on his own track.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.