(In 2016, the Supreme Court sent the case back to the Tenth Circuit to enable the government to work out a more sensible approach.) Gorsuch has also fought against a hyper-expansive reading of the establishment clause that would exclude religion from the public square.
In 2009 (in ), he disputed a panel decision that ruled that a county’s Ten Commandments display was unconstitutional.
Gorsuch has earned special acclaim for his insights on administrative law and separation of powers. a delegation run riot, a result inimical to the people’s liberty and our constitutional design.” Gorsuch has had only one case involving the matter of abortion ().
In an opinion last August (), he argued that the Supreme Court’s precedents on deference to reasonable agency interpretations of law “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” He called for the Supreme Court to reconsider whether the so-called ), he said that Congress had gone too far in delegating power to an agency to decide what conduct is criminal: For Congress to “effectively pass off to the prosecutor the job of defining the very crime he is responsible for enforcing” is “by any plausible measure . Last October, he dissented strenuously when the Tenth Circuit refused to reconsider a panel ruling in favor of Planned Parenthood’s Utah affiliate.
That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.
In that speech, Gorsuch acknowledges that Justice Scalia’s project had its critics, from the secular moralist Ronald Dworkin to the pragmatist Richard Posner.He has deep roots in his hometown of Denver and absorbed his work ethic from his family.One of his grandfathers worked his way through law school with a job as a streetcar conductor in Denver.He explains why he rejects those critics and instead sides with Justice Scalia in believing that “an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function.” The Constitution itself carefully separates the legislative and judicial powers.Whereas the legislative power is the “power to prescribe new rules of general applicability for the future,” the judicial power is a “means for resolving disputes about what existing law is and how it applies to discrete cases and controversies.” This separation of powers is “among the most important liberty-protecting devices of the constitutional design.” Among other things, if judges were to act as legislators by imposing their preferences as constitutional dictates, “how hard it would be to revise this so-easily-made judicial legislation to account for changes in the world or to fix mistakes.” Indeed, the “very idea of self-government would seem to wither to the point of pointlessness.” As Gorsuch put it (in contributor, in 2005 (before he took the bench), Gorsuch lamented that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.” At 49 years of age, Gorsuch has already served for more than a decade on the U. Court of Appeals for the Tenth Circuit, which reviews decisions of the federal district courts in the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.The panel had granted Planned Parenthood a preliminary injunction against the Utah governor’s directive to state agencies to stop acting as intermediaries for federal funds flowing to Planned Parenthood.Gorsuch faulted the panel for failing to accord the appropriate degree of deference to the district court’s factual findings and for making its own bizarre inferences about the governor’s reasons for acting.He memorably complained that the panel’s hypothetical “reasonable observer” — whose imagined perceptions dictate what does and does not violate the establishment clause — was not “someone who got things right” but was instead “an admittedly ), he disagreed with a panel ruling that Utah violated the establishment clause when it allowed the private Utah Highway Patrol Association to memorialize troopers killed in the line of duty by erecting large white crosses on public property near the locations of their deaths.The Tenth Circuit’s “reasonable observer,” in his view, “continues to be biased, replete with foibles, and prone to mistake” (as well as “a bit of a hot-rodder”).As Former Attorney General William Barr stated in 2006 when the nominee was being considered for the U. When nominees say they can’t answer these types of questions, this is treated as a dodge. You might as well ask a potential umpire how he will call it if a certain player takes a pitch low and on the corner when there’s a 3-2 count and a man on second.How can he answer unless he’s actually in that situation?