In a Supreme Court term in which many observers have been focused on the Court’s newest conservative Justice, Brett Kavanaugh, one of the more interesting developments has involved his slightly senior colleague and fellow Trump appointee, Neil Gorsuch. In two criminal-law cases handed down in the last week of the term, Gorsuch has given the Court’s four-Justice liberal bloc the key vote it needed to form a majority, and he has written the lead opinions.
In United States v. Davis, a case involving the application of federal statutes stipulating additional penalties for “crimes of violence” committed with firearms, Gorsuch concluded the definition of “crimes of violence” was unconstitutionally void for vagueness. As the Washington Post observed, Gorsuch followed the approach of his mentor and predecessor, Antonin Scalia, in interpreting federal statutes:
In the gun case, Gorsuch assumed the role of the man he replaced, Antonin Scalia, a conservative who sided with liberal justices in similar criminal cases involving laws that lower courts deemed hard to decipher. He also broke with Justice Brett M. Kavanaugh, a fellow nominee of President Trump, who wrote a dissent in the case.
Gorsuch’s position on constitutional vagueness in criminal statutes isn’t a surprise; it echoes the same stance he took last year in another 5-4 decision making deportation of immigrants more difficult. His differences with Kavanaugh on this issue are stark, as reflected in his junior colleague’s sharply worded dissent in Davis. As Kevin Daley noted:
“The Court’s decision will thwart Congress’ law enforcement policies, destabilize the criminal justice system, and undermine safety in American communities,” Kavanaugh wrote. His dissent includes a list of past offenders who could now avoid conviction under the heightened penalty law or secure early release. They include one man who used a Molotov cocktail to firebomb the Irish Ink Tattoo Shop in Las Cruces, New Mexico, and another who used threats of violence to maintain his position in the Annapolis, Maryland, sex trade.
In the second decision of this term in which Gorsuch sided with liberals, United States v. Haymond, the Court overturned a federal statute mandating immediate re-incarceration of sex offenders on parole who are found with child pornography without a trial on that additional offense. Gorsuch, for the plurality opinion (Justice Breyer concurred while narrowing the scope of the decision), wrote some sweeping phrases:
“Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty. That promise stands as one of the Constitution’s most vital protections against arbitrary government,” Gorsuch wrote for the plurality Wednesday. “Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt. As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments.”
Justice Alito’s dissent, on which Roberts, Thomas, and Kavanaugh concurred, used even sharper language than Kavanaugh’s in the Davis case:
“I do not think that there is a constitutional basis for today’s holding, which is set out in Justice Breyer’s opinion, but it is narrow and has saved our jurisprudence from the consequences of the plurality opinion, which is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications.
In the world of Federalist Society–approved conservative judges, those are fighting words.
It is not entirely clear whether Gorsuch’s heresies are strictly a matter of his Scalia-style approach to statutory interpretations or reflective of a more fundamental libertarian strain. Ian Millhiser thinks it’s the latter:
What sets Gorsuch aside from at least some of his conservative colleagues is that he tends to paint in wide brushstrokes. Gorsuch has a broadly anti-government philosophy, and he is particularly interested in dismantling the power of federal agencies to regulate. Most of the time, that broad philosophy will lead him to strike down progressive reforms. But, as Davis shows, there are occasional cases where Gorsuch’s approach to the law produces small victories for liberals.
That may ultimately prove to be cold comfort given Gorsuch’s overall jurisprudence, but it’s still interesting to see the members of the Court’s conservative bloc go their separate ways.