It is only Neil M. Gorsuch’s first month as an associate justice on the Supreme Court, but he is already showing just how similar his judicial philosophy is to that of his predecessor, the late Justice Antonin Scalia.

In several difficult criminal law cases, Gorsuch has asked sharp questions from the bench and cast one of his first votes to deny a stay of execution—moves that echo Scalia’s approach to the law.

The Death Penalty in Arkansas

First, in McGehee et al. v. Hutchinson, Gorsuch voted to deny several Arkansas death row inmates’ requests to halt their executions.

Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor would have granted their request. Breyer wrote a two-page dissent questioning “whether the death penalty is consistent with the Constitution” (he clearly believes it isn’t).

While the majority did not state their reasons for denying the inmates’ request, it seems clear that they relied, at least in part, on the reasoning set out by Scalia in his concurring opinion in Glossip v. Gross (2015), in which he wrote that “not once in the history of the American republic has this Court ever suggested the death penalty is categorically impermissible.”

“The reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates.”

Scalia continued, “The Fifth Amendment provides that ‘[n]o person shall be held to answer for a capital … crime, unless on a presentment or indictment of a grand jury,’ and that no person shall be ‘deprived of life … without due process of law.’”

The Washington Post describes votes on stays of execution as “a time when the responsibility of the role crystallizes.” In McGehee, Gorsuch held firm, silently adopting Scalia’s constitutionalist reasoning.

No ‘Linguistic Somersaults’

Second, Gorsuch demonstrated his adherence to textualism through some of the questions he posed to the advocates during oral argument in Maslenjak v. U.S.

At issue in the case is whether the government was justified in removing the U.S. citizenship of Divna Maslenjak, an ethnic Serb from modern Bosnia.

Maslenjak, who came to the United States in 2000 and was subsequently naturalized as a citizen, was convicted of lying to a U.S. immigration official.

During an interview in 1998, she told the immigration officer that she and her husband were seeking asylum because they feared persecution in Bosnia because her husband had evaded conscription into the Serbian army.

In reality, he had served as an officer in a Serbian militia unit which was subsequently accused of war crimes.

In 2006, Maslenjak falsely stated on an immigration form that she had never lied to an immigration officer, and was subsequently convicted of making false statements on a government document.

A key issue before the Court is whether that lie was “material” enough to affect the original immigration decision, which would, in turn, be sufficient to uphold her conviction and her subsequent denaturalization.

As Amy Howe writes at SCOTUSblog, “ruling for the government” in this case “would give U.S. officials boundless discretion to take away citizenship based on even very minor lies.”

In the midst of this high stakes argument, Gorsuch’s questions focused on one issue in particular: The text of the law itself.

The statute, Gorsuch noted, “doesn’t contain an express materiality provision,” and Gorsuch was concerned about having to do “a lot of linguistic somersaults to add” such a provision into the law.

That harkens back to Scalia’s dissenting opinion in King v. Burwell (2015). There, the U.S. Supreme Court held that the Affordable Care Act’s “tax credits are available to individuals in states that have a federal exchange.”

In signature prose, Scalia wrote that “[t]he somersaults of statutory interpretation” that the majority “performed (‘penalty’ means tax … ‘established by the state’ means not established by the state) will be cited by litigants endlessly, to the confusion of honest jurisprudence.”

Gorsuch appears sympathetic to Scalia’s disapproval of “linguistic somersaults” and the idea that judges are empowered to rewrite laws that they may disagree with.

The Big Picture

Third, Gorsuch showed a keen awareness of how the Supreme Court’s rulings carry far-reaching implications for future cases in Weaver v. Massachusetts.

That case involved a man named Kentel Weaver, who in 2006 was convicted of unlicensed possession of a firearm and premeditated murder of 15-year-old Germaine Rucker. Weaver was 16 at the time of the murder.

In 2011, he sought a new trial, claiming that his counsel was ineffective because they did not object to the courtroom being closed during jury empanelment, when the defendant, judge, and jury first meet.

Weaver argued that this was a procedural irregularity that violated his Sixth Amendment right to a public trial.

But as Chief Justice John Roberts pointed out at oral argument, the reason the courtroom was closed was that it was full. Ninety members of the public were in attendance as prospective jurors, and they all needed seats.

Weaver objected to this reasoning, saying that while prospective jurors were seated, his mother and his other supporters weren’t able to enter the courtroom during the early stage of the proceedings.

At this point, Gorsuch entered the fray with a big picture question.

He asked whether a “triviality exception” might apply here, or whether the Court should consider the potential unintended consequences that can arise when it tries to prevent every injustice—no matter how small—by imposing new procedural requirements across the entire criminal justice system.

Gorsuch asked whether ruling for Weaver would create a “Professor Stuntz” problem, whereby in “perfecting procedure, we actually result in its denial…”

This reference was to the late Harvard criminal law professor, William J. Stuntz, who argued that by following the Warren Court’s “fetishization of so many formalistic procedures,” the criminal justice system is now overburdened by an excess of procedural technicalities at play.

Berkeley law professor Andrea Roth summed up Stuntz’s argument, saying that these rules “at best indirectly ensure fairness of trial and sentencing outcomes” but have “rendered trials too expensive” and complex for anyone but elite lawyers to tackle.

In turn, writes Roth, this “has driven prosecutors and lawmakers to seek ways to avoid trial and force pleas through draconian sentencing schemes, a skewed focus on easily detected urban drug crimes mostly committed by racial minorities, and ever-expanding substantive criminal law.”

Scalia worked to constrain some of the Warren Court’s excesses in this regard during his time on the Court.

In Hudson v. Michigan (2006), for example, Scalia, writing for the majority, refused to extend the “exclusionary rule” (which requires the suppression of incriminating evidence, notwithstanding the fact that a defendant may be guilty) to technical violations of “the knock-and-announce rule,” which establishes that, absent extenuating circumstances, police officers must knock on the door and announce their presence before entering a suspect’s home.

He also asserted, in a noteworthy University of Chicago Law Review article, that there is a “dichotomy between ‘general rule of law’ and ‘personal discretion to do justice’”—that is, to rule as a judge personally desires rather than as the law instructs—and that the latter may lead to “unfortunate practical consequences.”

So far, Gorsuch is modeling this Scalia-esque approach and honoring the rule of law.

This is the exact approach he espoused in a dissent in A.M. v. Holmes (2016) while sitting on the U.S. Court of Appeals for the Tenth Circuit. There, he wrote, “[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.”

A Fitting Successor to Scalia

Throughout his nomination and confirmation process, Heritage Foundation legal scholars noted Gorsuch’s striking similarities to Scalia, which include a shared sensitivity to overcriminalization, textualism, and the separation of powers.

In these first few cases, Gorsuch is showing just how well he fits the Scalia mold of being a committed constitutionalist and textualist on the High Court. (For more from the author of “In His First Criminal Cases, Neil Gorsuch Already Mirroring Scalia” please click HERE)

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With just a few days on the Supreme Court under his belt, America’s newest justice will hear arguments in a religious liberty case nearly 150 years in the making next week – one that could have a sweeping impact on a majority of state constitutions.

It all began with a church playground and some tire scraps.

The case of Trinity Lutheran v. Cromer started in January 2013 after the state of Missouri denied a preschool access to a statewide public safety program that provides recycled tires for playgrounds simply because the preschool was operated by a church.

In short, they wanted to remove the pea gravel surfacing encompassing the recreational space with safer – and much more boo-boo averse – tire scraps.

Why were they turned down? Because Missouri is one of the majority of U.S. states that have what’s known as a Blaine Amendment. These are legal relics from the 19th century that were dreamed up during a fervor of anti-Catholic sentiment in American history.

Now the question before the Supreme Court, now rounded out with Justice Gorsuch, is whether or not laws like those in Missouri that block public funds from going to religious organizations – regardless of the purpose – are indeed in line with the First Amendment.

The Blaine Amendment is named after former Speaker of the House James G. Blaine of Maine, who in 1875 proposed a constitutional amendment stipulating that “no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

The policy initiative was a response to Catholic schools seeking equal footing in the public square for their desired academic and spiritual curricula. See, at the time, public schools were overwhelmingly Protestant in tone and curriculum; when Catholics asked for equal treatment in education, anti-papal politicians responded in kind.

While Blaine’s law never made it past the U.S. Senate, similar measures took hold in state constitutions across the country. Now some 37 states still have them on the books, leading to situations like that of the Trinity Lutheran playground.

Proponents of such amendments – like the Freedom from Religion Foundation, the ACLU, and the Satanic Temple – view these sorts of laws as a means of preserving the so-called “separation of church and state doctrine.” However, such a doctrine appears nowhere in the Constitution nor Bill of Rights (absent from the Philadelphia Convention), and didn’t make an appearance in the legal discussion until 1947. [See: Lee, “Our Lost Constitution”]

But Erik Stanley, a senior counsel at Alliance Defending Freedom and director of the group’s Center for Christian Ministries, says that what these kinds of laws effectively do is impose a harsher vision of the “separation of church and state” than the Constitution requires, while discriminating against organizations — which violates the Free Exercise Clause of the First Amendment.

“You can’t violate the Free Exercise Clause by trying to have some greater degree of separation of church and state at the state level,” Stanley explains. “Essentially, what Missouri is trying to do is say, ‘Well, upholding our definition of the separation of church and state in our state constitution is treating religion worse than everybody else.’”

One case that Stanley points to is a religious discrimination case from the 1970s in which an 18th century Tennessee law barred Paul McDaniel – a Baptist minister – from being a state constitutional delegate. In an 8-1 decision, the Supreme Court found that the Tennessee law violated the free exercise of religion by making McDaniel’s civil liberties conditional on his willingness to renounce his religious liberties. Therein lies the parallel between this case and a children’s playground in the Show Me State.

“There’s no valid, neutral reason to exclude Trinity Lutheran Church” from the tire scrap program, Erik Stanley said, saying that the church went through the application process and was highly rated for the program. “The only real reason to exclude them was because of their religious status, which is the same as what happened in McDaniel.”

Blaine Amendments don’t just keep playgrounds from getting publicly available safety equipment. Back in October I wrote about how a similar provision in Oklahoma is keeping kids with special needs from using public scholarship money at schools that fit them.

One such example was Wyatt Johnson – born three months premature, hearing imparted, and now a teenager – whose family spent years in litigation trying to get his public scholarship money to Metro Christian Academy in Tulsa. (Sooner State voters opted against getting rid of the law with a ballot initiative in November.)

Furthermore, if you let the logic behind these sorts of rulings play out fully, you run into all sorts of absurdities.

“If [Missouri] can deny Trinity Lutheran access to this neutral benefit program which has nothing to do with religion, solely because of the fact that it’s a church, then they could deny all kinds of things,” Stanley explains. “They could say that we’re not going to send the fire department to a burning mosque or that they’re not going to send police to a synagogue break-in, because those are also neutral benefits that provide aid to religion.”

The question on everyone’s mind now is how Justice Gorsuch will rule in one of the most consequential cases of his first term.

Throughout his months-long confirmation process, Gorsuch’s record on religious liberty as a circuit judge was praised by First Amendment advocates. Now, as a jurist charged with the most difficult legal questions facing our republic, those who awaited his appointment with bated breath will finally get to see how he will rule on an issue so clouded in stigma and misconception.

Stanley is optimistic about the outcome of the case, saying Gorsuch “proved himself to be a friend of religious liberty in how he ruled on the 10th Circuit court,” and that the ADF team has “every reason to believe that he’ll continue that at the Supreme Court.”

Oral arguments in the case are scheduled for April 19. (For more from the author of “Gorsuch’s First Few Weeks on the Job Could Have a Monumental Effect on Religious Liberty” please click HERE)

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With Neil Gorsuch’s confirmation as the 113th Supreme Court justice Friday, it won’t be long before he starts revealing what he really thinks about a range of hot topics he repeatedly sidestepped during his confirmation hearing.

In less than two weeks, the justices will take up a Missouri church’s claim that the state is stepping on its religious freedom. It’s a case about Missouri’s ban on public money going to religious institutions and it carries with it potential implications for vouchers to attend private, religious schools.

Other cases the court could soon decide to hear involve gun rights, voting rights and a Colorado baker’s refusal to design a cake for a same-sex couple’s wedding. Some of those cases may come up April 13, which could be Gorsuch’s first private conference — where justices decide whether to hear a case. It takes four votes to do so, though the court does not generally announce each justice’s decision. (Read more from “Gorsuch May Be Decisive Vote in Divisive Supreme Court Cases” HERE)

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Sen. Joe Donnelly (D-Ind.) said Sunday that he will support the nomination of Neil Gorsuch to the Supreme Court, becoming the third moderate Democrat to break with his party and back President Trump’s nominee.

“After meeting with Judge Gorsuch, conducting a thorough review of his record, and closely following his hearing before the Senate Judiciary Committee, I believe that he is a qualified jurist who will base his decisions on his understanding of the law and is well-respected among his peers,” Donnelly said in a statement.

Donnelly said the Senate should keep its 60-vote requirement for breaking a filibuster on Supreme Court nominees in place, a reference to Republicans suggesting they may resort to the “nuclear” option.

Republicans, vowing to confirm Gorsuch “one way or another,” have indicated, however, they may alter the Senate rules so that ending debate on Gorsuch would only need a 51-vote simple majority. They currently hold a 52-person majority in the upper chamber and would need five additional Democrats or Independents to back Gorsuch if the rules are not changed . . .

Democrats, still reeling after former President Barack Obama’s nominee to the court was blocked by Republicans from getting a hearing or a vote last year, have largely come out against Gorsuch. Thirty-eight Democrats have said they will oppose his nomination. (Read more from “Donnelly Becomes Third Democrat to Back Gorsuch” HERE)

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