The Best Opinions of Neil Gorsuch

Readers of this blog know that I enjoy reading SCOTUS opinions and in this post I rank the best opinions of my favorite justice on the court, Neil Gorsuch.

What I have selected as Gorsuch’s best (eight of them) illuminate how originalism looks when consistently applied. They cover a lot of ground: the Constitutional rights of private business owners, Native Americans, criminals, gay and transgendered people, cell-phone users, kids who grossly act out in school, immigrants, and Americans with commonwealth status. They show how textual meaning matters and that process is as important (if not more so) than outcome in judicial rulings. As dissents they can be frustrating as they are entertaining; as concurrences they turn in surprising directions. Gorsuch writes with a razor, and I enjoy his opinions especially when he is in the minority scolding his colleagues.

1. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)

The issue at stake: Free expression
The ruling (7-2): A Colorado baker has the right to refuse designing wedding cakes that celebrate gay marriage
Gorsuch’s opinion: Concurrence

For Gorsuch’s best opinion, I choose not one of his prestigious majority rulings, nor one of his razor-sharp dissents, but a concurrence which should have been the majority opinion. It’s the well known case of the Colorado baker who refused to design a wedding cake celebrating gay marriage. Led by justice Kennedy, the majority (7-2) upheld the right of a private business owner (Jack Philipps) to refuse to design one of his products (a cake) in a particular way (that celebrates gay marriage). But the majority ruled on the narrowest grounds imaginable — that the Colorado Civil Rights Commission during its consideration of the case had shown an anti-religious bias, and in speaking contemptuously of religion violated the Phillips’ rights to free expression. So they reversed the Commission’s decision in favor of the baker on this technicality, emphasizing that this case should not provide future guidance for courts that will face similar issues.

In his concurrence Gorsuch did better than that, taking the case on its merits and arguing that Philipps was justified period in refusing designs for cakes — regardless of the Colorado Civil Rights Commission’s attitude towards him. The Commission had not only showed religious hostility; it had failed to recognize the more substantive point, that private business owners cannot be compelled to create a product that they object to on religious or moral grounds. Stunningly, the Commission had already acknowledged this very principle in its own treatment of three bakers who refused to bake cakes with anti-gay messages on them. The Commission, said Gorsuch, should have found in the Philipps’ favor, just as it had found in favor for the other three bakers. All four bakers were in the same situation. The three bakers refused to sell a cake that denigrated same-sex marriage, just as Jack Philipps refused to sell a cake celebrating same-sex marriage. Most crucially: The atheist bakers in the first case were happy to sell to persons of Christian faith, just as the conservative Christian baker in the second case was happy to sell to gay people. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers. Gorsuch’s reasoning was absolutely correct. Business owners cannot be compelled to artistic design, only to provide equal access to their products. Whatever they do create, they must sell impartially and without discrimination. But they aren’t obligated to create something in the first place that goes against their religious or moral convictions.

Gorsuch’s concurrence should have been expanded on and embraced as the majority opinion. Instead we got an egregious cop-out. In Kennedy’s ruling, “the outcome of cases like this in other circumstances must await further elaboration in the courts”. Clearly most of the justices didn’t want to get their hands dirty for fear of being perceived as bigoted homphobes. But there is no conflict here between free speech and civil rights. As a bisexual it wouldn’t faze me in the least if a baker told me he didn’t make cakes celebrating same-sex unions. His business, his house, his rules — and for me, a mere inconvenience like going into any other business and being told they don’t carry what I need. Now, if I grabbed one of the baker’s products off the shelf and tried to buy it but was refused service because I’m bisexual, then obviously that would offend me; and indeed that would be a violation of discrimination laws. But no one has the right to expect business owners to design products they refuse to carry. The woke sense of entitlement is truly astonishing. I’ll say it again: business owners should not be compelled to artistic design, only to provide equal access to their products. That’s what Gorsuch was saying in his concurrence, and that’s what should have been the unambiguous ruling in Masterpiece Cakeshop.

2. McGirt v. Oklahoma (2020) and Oklahoma v. Castro-Huerta (2022)

The issue at stake: Native American sovereignty in the tribal courts
The rulings (5-4; 5-4): The federal government and tribal courts (not the states) have exclusive jurisdiction to prosecute crimes committed by Natives on Indian reservations (2020). On the other hand, the federal government and state governments (not the tribal courts) have jurisdiction to prosecute crimes committed by non-Natives on Indian reservations (2022).
Gorsuch’s opinion: For the majority in 2020, and for the dissent in 2022

It’s become clear to me that conservative justices have either a poor understanding of Native treaties or are simply contemptuous of them. Except for Neil Gorsuch. He has joined the liberal justices four times against the other conservatives in ruling in favor of the tribes — not because he’s a bleeding heart, but because he’s following proper conservative jurisprudence, and holding the government to its vows. Of the four cases, I choose these two, jointly, for the #2 slot. They argue essentially the same thing.

In McGirt v. Oklahoma, Gorsuch ruled that prosecution of crimes by Native Americans on Indian reservations is under the jurisdiction of the tribal courts and federal judiciary, not the state courts. He stated categorically: “We are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.” He was joined by the four liberals at the time (Kagan, Ginsburg, Breyer, Sotomayor) for a 5-4 ruling. McGirt, however, left open the question about crimes committed by non-Natives on Indian Reservations. The issue was decided this year in Oklahoma v. Castro-Huerta, and it should have gone the same way, but with Ginsburg replaced by Barrett it ended up being a conservative majority that ruled 5-4 against tribal jurisdiction. Gorsuch wrote a furious dissent, joined by the three remaining liberals: “Where this Court once stood firm, today it wilts. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another.” It’s the proper dissent — and to stress the point, a conservative one — which appeals to the landmark ruling of Worcester v. Georgia (1823), which has persisted for over 200 years, stating clearly that native tribes retain their sovereignty unless and until Congress ordains otherwise. If people don’t like tribal sovereignty, that’s for Congress alone to change, not the Supreme Court — which in this case, under Kavanagh’s majority ruling, was legislating from the bench.

3. Gundy v. United States (2019)

The issue at stake: Separation of powers
The ruling (5-4): The Sex Offender Registration and Notification Act’s delegation of authority to the Attorney General does not violate the separation of powers
Gorsuch’s opinion: For the dissent

Separation of powers is an important issue, but Americans have become increasingly indifferent to it. Today’s generation prefers immediate and favorable results, and to hell with the wider and long-term consequences. Whether it’s the judicial branch trying to legislate, the executive branch trying to legislate, or either of the elected branches trying to be judges, the threats to the rule of law, liberty, fair notice, democratic self-rule, and equal protection under the law remain the same.

The case of Gundy involves the executive branch assuming a legislative role, in what I take to be a stunning scenario: the nation’s chief prosecutor, the Attorney General, is able to write the laws for crimes he gets to punish. The Sex Offender Registration and Notification Act (SORNA) delegates that authority to him. Here the attorney general declared that a pre-SORNA sex offender was required to register under SORNA and then prosecuted him for having failed to register. This placed the power to make a law and the power to enforce it in the same hands — an egregious violation of the separation of powers. Alito and the four liberal justices ruled 5-4 that this was perfectly fine, but they were dead wrong. Gorsuch wrote for the dissent, saying:

“It would be easy enough to let this case go. After all, sex offenders are one of the most disfavored groups in our society. But the rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else.”

Indeed. It’s crazy to allow the chief prosecutor to write his own criminal code. It invests him with far too much power over half a million people. Alito is always out to lunch, so I expect insanity from him, but the liberals had their collective heads up their asses in Gundy. This ruling may not be particularly well known, but I rank it as Gorsuch’s third best and most important opinion.

4. Bostock v. Clayton County (2020)

The issue at stake: Gay and transgender rights
The ruling (6-3): An employer who fires an employee for being gay or transgender violates Title VII of the Civil Rights Act of 1964
Gorsuch’s opinion: For the majority

Gorsuch wrote for the majority (6-3) — himself, Roberts, and the four liberals — arguing that Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin”. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex — the very practice that Title VII prohibits. This is one of the most conservative rulings ever handed down by the Supreme Court, though people see it as a liberal one. It’s friendly to liberal politics, but it’s conservative law. It’s what Scalia’s originalist doctrine looks like when properly and consistently applied (though I doubt Scalia would have followed his own doctrine in this case).

Gorsuch’s argument is as bullet-proof as it is straightforward. Discrimination on the basis of one’s sexual orientation or transgender status is by definition sex discrimination, because in both types of discrimination, an employer must consider the employee’s sex — in other words, the employee’s biological marker of being a man or a woman — before the employer can identify the employee as homosexual (one who is sexually attracted to someone of the same sex) or transgender (one who is identifying with the other sex). Without the employer’s consideration of the employee’s sex, it would be impossible for that employer to discriminate against the employee on the basis of sexual orientation or transgender status. “Sexual orientation” and “transgender” cannot be defined, let alone understood, without explicit reference to sex.

The dissenting justices (Kavanagh, Thomas, Alito) crawled uphill with lame rebuttals, protesting that Congress didn’t put “homosexuality” or “transgendered” in the Act, and that Congress didn’t mean “gay” or “trans”, when writing the Act. But that’s wholly irrelevant. Gorsuch rubs the conservative noses in Scalia’s conservative originalist doctrine: “Discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second”, so it doesn’t matter that they aren’t explicitly named in the Act, or that they weren’t intended at the time of writing — anymore than it matters that interracial marriage wasn’t intended to be protected by the Equal Protection Clause when written in 1868.

Bostock is a solid example of value-free orignalism and gives lie to the myth that orignalism yields outcomes mostly favorable to conservative politics. For that reason I rank it at #4.

5. Carpenter v. United States (2018)

The issue at stake: Searching cell phone data without warrants
The ruling (5-4): Acquisition of cell-site records without a warrant violates the Fourth Amendment
Gorsuch’s opinion: A dissent and concurrence

This is sort of the inverse to the Masterpiece Cake case, where instead of concurring with the majority and scolding them at the same time, Gorsuch now dissents from the majority while agreeing with what drove them to rule the way they did. The case involved the government charging Timothy Carpenter for aiding and abetting robbery, on the basis of his cell-site evidence. Carpenter moved to suppress the government’s cell-site evidence on Fourth Amendment grounds, arguing that the FBI needed a warrant based on probable cause to obtain the records. The lower courts denied his motion to suppress, but the Supreme Court found in his favor, ruling that the Fourth Amendment protects not only property interests, but also reasonable expectations of privacy.

Gorsuch affirmed the former but denied the latter in his dissent. The framers, he insisted, didn’t protect privacy based on “reasonable expectations” in some ethereal way dependent on judicial intentions. They protected privacy in particular places and things — persons, houses, papers, and effects — and against particular threats — unreasonable governmental searches and seizures. The problem is that two Supreme Court rulings from the 70s — Smith v. Maryland and United States v. Miller — argued on the basis of “reasonable expectations of privacy”, and concluded that Fourth Amendment claims don’t apply to information shared with third-parties. Once you disclose information to third parties — like your bank, accountant, or doctor — you forfeit any reasonable expectation of privacy you might have had in it, and the government had a lawful right to obtain it by compulsory process. This of course is horribly wrong, as Gorsuch acknowledged with the majority (Roberts, Kagan, Ginsburg, Breyer, Sotomayor). His fellow conservative dissenters (Kennedy, Thomas, Alito) did not acknowledge this, and they concluded that cell-site records are no different from the many other kinds of business records that the government can obtain without warrants.

But that’s a terrible dissent, for as Gorsuch says (again, in agreement with the majority), people in fact do generally expect that information they entrust to third parties will remain private and confidential. But the remedy for this isn’t to appeal to some vague illegitimate idea about “reasonable expectations”, as the majority did. Rather than assert a Fourth Amendment claim based on a particular judge’s sensibilities about the “reasonableness” of our expectations to privacy, one must assert a Fourth Amendment claim based on cell-site data qualifying as personal property under existing law. And such a law does exist. Telephone carriers hold the information, but there is a statute that designates a customer’s cell-site location information as “customer proprietary network information” (CPNI) and gives customers rights to control the use of and access to CPNI about themselves. The statute generally forbids a carrier to use, disclose, or permit access to individuals indentifiable CPNI without the customer’s consent (except as needed to to provide the customer’s telecommunication services). Congress even afforded customers a private cause of action for damages against carriers who violate the Act’s terms. So customers have legal interests in this information, and those interests may well rise to the level of property right — which is legitimately protected by the Fourth Amendment. But in Carpenter, the plaintiff pursued a “reasonable expectations” argument, not a property rights argument, forfeiting, in Gorsuch’s view, a legitimate claim.

Gorsuch’s dissent in Carpenter is about reaching the goal by the safe path. The majority had the right idea, but they were trying to fix a problem without killing the monster that made it possible. Gorsuch writes:

“I cannot fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed I agree with that. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry [that only compounds the “reasonable expectations” problem]. Returning there, I worry, promises more trouble than help. Instead I would look to a more traditional Fourth Amendment approach.”

I too would rather see our cell-phone data shielded by the laws of property rights, and not leave the question eternally open to whatever this or that justice may think constitutes “reasonable expectations” to privacy. Smith and Miller should have been overturned, and the third-party doctrine ruled unconstitutional for everything — bank records, medical records, email servers — not just cell phones. Gorsuch’s shrewd criticism of both the majority and the dissent earns its place at #5.

6. A.M. v. Holmes (2016)

The issue at stake: Arresting kids for childish pranks
The ruling: The arrest of a 13-year old boy for repeatedly belching in school is lawful
Gorsuch’s opinion: For the dissent

This case is from Gorsuch’s last term on the Tenth Circuit (in Denver), a year before he joined the Supreme Court, and I include it on this list because it’s such a great dissent against a majority of idiots who seem not to have the common sense God gave geese. A middle school boy in Albuquerque, New Mexico was arrested for repeatedly belching on purpose during his gym class. The boy created a class distraction and was banished to the hallway, and he poked his head back into the classroom to belch again. At this point you might think that banishment to the principal’s office and a school detention would have been reasonable, but instead, the school had the boy arrested, put in handcuffs, and thrown into juvenile detention.

The boy’s mother was furious and sued the school officials and arresting officer, and rightly so, but lost her case. The judges on the Tenth Circuit took 94 pages to explain why arresting the boy was lawful, as the boy had violated a New Mexico statute which made it a crime to “willfully interfere with the educational process of any public or private school”. Gorsuch took only 4 pages to dissent, explaining that judicial precedent made the arrest of the boy unlawful. He pointed out that the New Mexico Court of Appeals long ago ruled that the statutory language on which the officer relied for the arrest in this case does not criminalize noises or diversions that merely disturb the peace or good order of individual classes. It criminalizes severe actions, like physical invasions of the school’s operations. Simply put, said Gorsuch, childish pranks do not justify the arrest of a child.

You don’t say. Gorsuch was the lone dissenter in this case, defending a 13-year old who was carted away in handcuffs because he couldn’t stop being gross. I belched all the time in my youth; I’m glad I wasn’t raised in New Mexico. This is an obscure ruling, and not even SCOTUS, but I love it so much — because I can’t believe Gorsuch had to counter such idiocy — that I place it at #6.

7. Niz-Chavez v. Garland (2021).

The issue at stake: Deportation
The ruling (6-3): Deportation hearing notices must be presented in a single document
Gorsuch’s opinion: For the majority

This is a technical case in which everything hinged on the word “a” in a statute, and got attention for that reason alone, but also because it saw three conservatives (Gorsuch, Thomas, and Barrett) joining hands with the three liberals (Kagan, Breyer, and Sotomayor). The other three conservatives who dissented (Kavanagh, Alito, and Roberts) were nonplussed to say the least.

The case involved Agusto Niz-Chavez, an unauthorized immigrant from Guatemala, who had been reported to the government for driving infractions. He received documents to appear at a deportation hearing in two separate installments. The first didn’t state where or when he needed to attend the hearing, though the second (received two months later) did. Niz-Chavez made an appearance at the hearing, where he stated his intent to seek withholding of removal under the Immigration and Nationality Act (INA) and relief under the Convention Against Torture. The immigration judge denied both applications, and Niz-Chaves appealed to the Board of Immigration Appeals. In addition to challenging the immigration judge’s conclusions, Niz-Chavez asked the Board to remand the case since his first notice to appear didn’t include the specific time and place of his removal proceedings, and thus didn’t trigger the stop-time rule under the INA. (The stop-time rule means that the clock stops ticking once you receive a Notice to Appear. That date becomes the end date of the immigrant’s continuous residency.) Niz-Chavez argued that he was now eligible for cancellation because of the deficiency of the notice he received. His appeals were rejected the Board and lower courts, and the case went to the Supreme Court.

The question for SCOTUS to settle was simply this: Must the government serve a specific document that includes all required information for a deportation hearing, or may the government serve that information over the course of multiple documents? Gorsuch’s answer was that the government must serve a single document with all the required information in order to trigger the stop-time rule.

“To trigger the stop-time rule, the government must serve a notice containing all the information Congress has specified. To an ordinary reader, a notice would seem to suggest just that: a single document containing the required information, not a mishmash of pieces with some assembly required. Someone who agrees to buy “a car” would hardly expect to receive the chassis today, wheels next week, and an engine to follow… At one level, the dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law’s terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”

More than fair enough, I say.

Interesting post-script to this case: Legal experts saw parallels between this case and Bostock v. Clayton County (#4 above). In both Gorsuch wrote for a majority of liberals (Kagan, Breyer, Sotomayor) and/or libertarians (himself, and Thomas and Barrett in this case; Roberts in the other case), against conservative ideologues (Kavanagh and Alito especially). In particular, Gorsuch and Kavanagh were seriously at odds with each other in each case, even though both are Trump appointees; both were former law clerks to Anthony Kennedy; and both were attendees of Georgetown Preparatory School. Yet Gorsuch and Kavanagh are as opposite as night and day in terms of jurisprudence.

8. United States v. Vaello Madero (2022)

The issue at stake: The Insular Cases (American colonialism)
The ruling (8-1): The Constitution does not require Congress to make Supplemental Security Income benefits available to the residents of Puerto Rico
Gorsuch’s opinion: Resentful concurrence

I love this one. The case involved Jose Luis Vaello-Madero, who was born in Puerto Rico in the 50s and moved to New York in the 80s. In 2012, he started receiving SSI payments with the onset of health problems, and in 2013 he moved back to Puerto Rico to help care for his wife. In 2016, the Social Security Administration (SSA) informed Vaello-Madero that because he had moved back to Puerto Rico, it was terminating his SSI benefits — and not only that, to add insult to injury, seeking to recover $28,000 in benefits it had paid Vaello-Madero between 2013 and 2016 when he was living in Puerto Rico.

Congress had established the Supplemental Security Income program to provide cash benefits to low-income elderly people with disabilities, and that program extends to residents of the 50 states, the District of Columbia, and the unincorporated territory of the Northern Mariana Islands — but for whatever reason, not to those living in Puerto Rico. The question for the Supreme Court is whether Congress violated the Fifth Amendment by establishing the program everywhere except Puerto Rico?

The ruling was pretty straightforward. The Constitution doesn’t require Congress to make benefits available to anyone in its unincorporated territories. Sotomayor dissented anyway, with no legal basis for her dissent. Instead of dissenting, Gorsuch concurred with the majority while delivering one mighty pissed-off screed. He concurred only because no one was asking the Court to overturn the Insular Cases — the series of Supreme Court rulings from the early 20th century that held that the federal government could rule Puerto Rico and other territories without regard to the Constitution. Gorsuch called for a case that would ask SCOTUS to do exactly that — to overturn the racist and colonial rulings. His screed is worth citing at length:

“A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law. The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of ‘incorporated’ and ‘unincorporated’ Territories. Nothing in it extends to the latter only certain supposedly ‘fundamental’ constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion. The Insular Cases can claim support in academic work of the period, ugly racial stereotypes, and the theories of social Darwinists. But they have no home in our Constitution or its original understanding. The Insular Cases’ departure from the Constitution’s original meaning has never been much of a secret. Even commentators at the time understood that the notion of territorial incorporation was a thoroughly modern invention. Because no party asks us to overrule the Insular Cases to resolve today’s dispute, I join the Court’s opinion. But the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them. We should settle this question right. Our fellow Americans in Puerto Rico deserve no less.”

Hopefully the Insular Cases will be overturned someday.

 

Not perfect, by any means…

I certainly don’t agree with Gorsuch all the time. (Anyone who agrees with any justice “all the time” probably isn’t much of an independent thinker.) Gorsuch has shown some some blind spots in three particular areas: separation of church and state, labor law, and voting rights. He’s too liberal in defending the rights of religious expression for government employees. Private cake-bakers, yes, absolutely, but public-school football coaches praying at midfield isn’t appropriate, despite what he wrote for the majority in Kennedy v. Bremerton School District (2022) (in my view the worst opinion he has ever written). His perspective on unions leaves much to be desired. While he didn’t write the opinion or any concurrence for Janus v. American Federation of State, County, and Municipal Employees (2018), he did join that horrible ruling which now prevents people, acting through their state and local officials, from making important choices about workplace governance — and on top of that encourages freeloading non-union members who reap the same benefits as dues-payers. Then there was Rucho v. Common Cause (2019), to which he contributed nothing, but joined the opinion just the same; thanks to that ruling (which claimed the Court lacked jurisdiction and left matters for the states and Congress to decide), partisan gerrymanders are able to deprive citizens of a most fundamental constitutional right: to participate equally in the political process and choose their political representatives. Still, I do I agree with Gorsuch’s opinions more than those of any other justice, and I consider him a model of impeccable judicial integrity.