Gorsuch Charts Course as Originalist With Independent Streak

[Elderberry]

Bloomberg by Patrick L. Gregory 4/11/2019

    Thomas ally still a win for conservatives two years in

    Sometimes joins liberals on criminal procedure issues

Justice Neil Gorsuch has delivered almost precisely what conservatives were hoping for over his two years on the U.S. Supreme Court, even though his principles occasionally take him in other directions.

He’s followed the originalist mold of the late Justice Antonin Scalia, even joining the court’s liberals at times on criminal procedure matters as Scalia often did. He’s made Clarence Thomas less of an iconoclast in arguments to overturn longstanding precedents.

But he’s also made his individual marks with bold wording on capital punishment and Native American rights, including his opinion this month that the Eighth Amendment’s protection against cruel and unusual punishment doesn’t “guarantee a prisoner a painless death.”

“Gorsuch has been a grand slam for President Trump, who campaigned on a promise to appoint originalist and textualist justices in the mold of Scalia,” Mike Davis, who clerked for Gorsuch at the U.S. Court of Appeals for the Tenth Circuit and at the high court, told Bloomberg Law.

To progressives, Gorsuch has been a fifth vote against workers and voting rights, and for Trump’s “outrageous travel ban targeting Muslim countries,” said Sam Berger, a former adviser to President Barack Obama. He’s now vice president of the Democracy and Government Reform Program at the Center for American Progress.

Gorsuch’s record shows why conservatives “went to great lengths” to prevent Obama from filling the high court vacancy after Scalia’s death, Berger said.
Thomas Ally


One of Gorsuch’s clearest impacts has been in giving Thomas a partner in challenging precedents underpinning some of the Supreme Court’s most seminal decisions.

Gorsuch took his seat at the tail end of the court’s 2016 term, but in all 17 cases that he participated in, he agreed with Thomas on the underlying judgment every time, according to statistics from SCOTUSblog. No other two justices were in agreement in every case; Ruth Bader Ginsburg and Sonia Sotomayor were on the same side 93 percent of the time.

Thomas and Gorsuch have disagreed more often since then. But during the 2017 term, they still agreed 81 percent of the time.

And over the 29 cases decided this term, including summary decisions, Thomas and Gorsuch (and Justice Samuel Alito) have agreed 90 percent of the time, according to Bloomberg Law research.

More: https://biglawbusiness.com/gorsuch-charts-course-as-originalist-with-independent-streak