Justice Harold Burton recalled from a 1957 meeting with President Eisenhower that the president said his two biggest mistakes were sitting on the Supreme Court: Justices Earl Warren and William Brennan. Both were Republicans.

Warren was the governor of California who participated in the detention of Japanese Americans during World War II.  Brennan was appointed to New Jersey Supreme Court by Republican Governor Alfred Driscoll. Brennan was not a liberal on New Jersey’s highest court.  

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Justice David Souter, appointed by George H.W. Bush and Harry Blackmun appointed by President Nixon, turned out to be liberals. Byron White, appointed by John F. Kennedy, turned out to be much more conservative than expected.  

 

The first point is that once on the Supreme Court, justices can go on their own path.  The second point is that judges with slim records, like Judge Gorsuch, are not easy to predict.

Liberal Signs

Gorsuch lives in the ultra-liberal college town of Boulder, Colorado.  He also teaches at the University of Colorado’s law school, also a progressive bastion, and is supported in his quest for the Supreme Court by most of the faculty and students there.

Gorsuch is also a member of the St. John’s Episcopal Church in Boulder.  The Episcopal Church has embraced very liberal positions on a variety of issues, including performing same-sex commitment ceremonies since the 1980s and eventually same-sex marriages. At church, he often hears a very liberal point of view.  

Mike Orr, a spokesman for the Episcopal Church in Colorado, described Gorsuch’s church, as a congregation that “does a lot of social justice and advocacy.” He said, “It’s a healthy and vibrant congregation. It’s very diverse in its congregants as well as its ministry.”

The first word that St. John’s uses to describe itself on its website and Facebook page is “inclusive,” and the church is led by a female rector. On its website, the church encourages members to write letters to Congress asking that they combat climate change.

Cases and Decisions 

Judge Gorsuch sided with an Albuquerque middle schooler who was strip-searched by his school, dissenting while his colleagues ruled that the school, police officer and other employees were immune from lawsuits. Judge Gorsuch cited in a brief, colorful dissent, “Oliver Twist,” in which a judge admonishes Mr. Micawber that the law thinks a man should control his wife. In the novel, Micawber responds: “If the law thinks that, then the law is a ass, a idiot.”

Gorsuch concluded:   

“Often enough the law can be ‘a ass — a idiot,’ Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838) — and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels.

“So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands — and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass as they do. I respectfully dissent.”  

Judge Gorsuch’s opinion in this case was published six months ago. He does not sound very conservative in this dissent.

Judge Gorsuch wrote an opinion upholding a Colorado clean energy program against a challenge alleging it would hurt coal producers from out of state. Colorado law requires electricity generators to ensure that 20 percent of the electricity they sell to Colorado consumers comes from renewable sources. Gorsuch upheld the liberal legislation of the Colorado legislature that was challenged by the Energy and Environment Legal Institute, a conservative, anti-environment organization.

Liberal or Libertarian?

Judge Gorsuch does not fit the mold of a rock-ribbed conservative.  He is a smart, free-thinking, literary, independent who will be a good, and unpredictable justice.  In some cases he will be liberal, some libertarian and in others conservative. But he is a fair man with a good sense of justice, just what we need on the Supreme Court.

Joel D. Joseph is the author of Black Mondays: Worst Decisions of the Supreme Court (4th Edition, 2014), with a foreword by Justice Thurgood Marshall, and Inequality in America: 10 Causes and 10 Cures (2016). He earned his JD from Georgetown University.


The views of contributors are their own and not the views of The Hill.