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Justice Neil Gorsuch: Is He Really “In the Mold” of Justice Scalia?

By Daniel L. Kaplan

Political Backdrop

As a candidate, President-to-Be Donald Trump frequently stated that he intended to appoint judges “in the mold of” the late Justice Antonin Scalia. Since then, the “mold of Scalia” locution has served as a sort of mantra for the administration’s approach to judicial nominations. Indeed, when Justice Kennedy retired, Vice President Pence even posted a somewhat backhanded tweet, simultaneously thanking Justice Kennedy for his years of service and promising that he would be replaced by a justice “in the tradition of the late Justice Scalia.”

But what does this mold-of-Scalia mantra actually mean? It seems unlikely that Trump and Pence intended to assure their supporters that the administration’s judicial nominees would share Justice Scalia’s views on the anti-retroactivity principle, or the Administrative Procedure Act. Instead, Trump’s intended meaning is more clearly illuminated by his ancillary statements stressing the themes of constitutional originalism and a tough, law-and-order stance on criminal law—which makes sense because these themes play into the popular perception of the late Justice Scalia. According to this perception, Justice Scalia practiced a form of originalism that could be counted upon to extract from the mists of history principles that tended to constrict and weaken the rights of criminal defendants.

But to an observant follower of Justice Scalia’s opinions and votes in the field of criminal law, this popular perception does not match reality. In fact, in some very significant areas, Justice Scalia’s analysis (whether originalist or not) pushed the Court’s criminal jurisprudence in distinctly defendant-friendly directions. Among other notable examples, he advocated positions relating to the scope of the Confrontation Clause, the Sixth Amendment guarantee that juries (rather than judges) must make factual findings that determine a criminal defendant’s punishment, and the Due Process Clause prohibition of punishment based on the violation of vaguely defined crimes, which were and remain very welcome to the criminal defense bar.

In short, Scalia-the-mantra does not match Scalia-the-jurist. Yet the mantra is not entirely divorced from reality. It is divorced from the reality of Antonin Scalia—but it marries up nicely with the reality of a certain Justice Clarence Thomas. Indeed, inquiring minds might wonder why Trump keeps promising to deliver judges in the mold of Justice Scalia, when what he really intends is to appoint judges in the mold of Justice Thomas.

But that is a subject for another day. Today’s assignment is to examine Trump’s first effort to load up the Supreme Court with judges “in the mold of” Justice Scalia, by appointing Justice Neil Gorsuch. Justice Gorsuch has served on the Court from early April of 2017, participating in a good number of criminal-law decisions during that time—enough to provide at least a preliminary answer to this question: Does Gorsuch’s jurisprudence resemble the commonplace perception of Justice Scalia (i.e., the reality of Justice Thomas) or the reality of Justice Scalia, or neither? An examination of some of the significant criminal law cases in which Justice Gorsuch has participated thus far sheds some interesting light on this question.

McWilliams v. Dunn, 137 S. Ct. 1790 (2017). This case concerned the question of whether the state of Alabama violated clearly established federal law by failing to provide a capital defendant with access to a mental health expert. The majority, in an opinion by Justice Breyer, held that it did, citing the Court’s earlier decision in Ake v. Oklahoma, 470 U.S. 68 (1985). At oral argument, Justice Gorsuch expressed concern about how broadly a ruling in favor of the defendant would reach, pressing the petitioner’s attorney to identify its “stopping point.” Justice Gorsuch, along with Chief Justice Roberts and Justice Thomas, joined Justice Alito’s dissent, which asserted that Ake did not “clearly establish” the rule that the majority extracted from it.

Weaver v. Massachusetts, 137 S. Ct. 1899 (2017). This case addressed whether prejudice is presumed when a defendant raises a violation of his right to a public trial as part of a claim of ineffective assistance of counsel, as it is when such a claim is raised on direct appeal. At oral argument, Justice Gorsuch raised pragmatic concerns, worrying about a rule that would create a “perverse incentive” for the state to secure waivers of ineffective assistance. Justice Gorsuch joined Justice Kennedy’s majority opinion holding that prejudice is not presumed in this context. Notably, Justice Gorsuch also joined two separate concurrences written by conservative fellow justices. In one, Justice Thomas questioned the majority’s assumption that the Sixth Amendment right to a public trial extends to the jury-selection phase, suggesting that this assumption might conflict with the “original understanding” of the right to a public trial. In the other, Justice Alito argued that the petitioner could not satisfy the essential requirements of an ineffective-assistance claim.

Davila v. Davis, 137 S. Ct. 2058 (2017). This case addressed the question of whether a federal habeas court may hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel based on the fact that a prisoner’s state postconviction counsel provided ineffective assistance by failing to raise that claim. At oral argument, Justice Gorsuch returned to practical concerns, worrying about the “strange incentives” that the petitioner’s proposed approach could create. Justice Gorsuch joined Justice Thomas’s majority opinion holding that a federal habeas court could not hear the claim. Justice Breyer filed a dissenting opinion joined by Justices Ginsburg, Sotomayor, and Kagan.

Tharpe v. Sellers, 138 S. Ct. 545 (2018). The Tharpe decision dealt with an African American habeas corpus petitioner who showed that a white member of the jury that convicted him of murder expressed shockingly racist views, including an uncertainty as to whether “black people even have souls.” Despite this showing, the district court denied him relief, reasoning that his claim was procedurally defaulted and that he had failed to show that the juror’s racist beliefs prejudiced him. The Eleventh Circuit denied the petitioner’s request for a certificate of appealability. In a brief per curiam opinion, the Supreme Court vacated and remanded the Eleventh Circuit’s judgment, holding that jurists of reason could debate whether the petitioner had shown prejudice. Justice Thomas filed a remarkably strongly worded dissent in which he detailed the facts of the crime, charged the majority with bending the law because they were “disturbed” by the juror’s racist rhetoric, and criticized them for “ceremonial handwringing.” Justice Gorsuch, along with Justice Alito, joined Justice Thomas’s opinion.

Class v. United States, 138 S. Ct. 798 (2018). The issue in Class was whether a guilty plea, in and of itself, bars a defendant from challenging the constitutionality of the statute of conviction on direct appeal. At oral argument, Justice Gorsuch took a firmly historical approach, noting, “I look to history to start with,” stressing the significance of an 1869 opinion of the Supreme Judicial Court of Massachusetts and pressing counsel to explain, “what do I do about [the Massachusetts opinion] and this 150 years of history?” That 1869 decision was emphasized in Justice Breyer’s opinion for the majority—which Justice Gorsuch joined—holding that a defendant who pleads guilty may nevertheless challenge the constitutionality of the statute of conviction. Justice Alito filed a dissent joined by Justices Kennedy and Thomas. In a notable twist (for an opinion joined by the typically history-focused Justice Thomas), the dissent ridiculed the majority for “seek[ing] refuge in history” and “dust[ing] off” the 1869 Massachusetts decision.

Jennings v. Rodriguez, 138 S. Ct. 830 (2018). In Jennings, the Court addressed a Ninth Circuit opinion construing the Immigration and Nationality Act as imposing an implicit six-month time limit on an alien’s detention under two sections of that Act. Justice Alito wrote an opinion for the Court holding that the Act imposes no such limitation on detention. Justice Breyer filed a dissent in which Justices Ginsburg and Sotomayor joined. The conservative majority, however, was not united. Although Chief Justice Roberts and Justice Kennedy joined Justice Alito’s opinion in full, Justices Thomas and Gorsuch declined to join in the portion of Justice Alito’s opinion holding that the Court had jurisdiction to address the question presented, and Justice Gorsuch joined Justice Thomas’s concurrence expressing the view that the Act barred any court from taking jurisdiction to address the question. But Justice Gorsuch notably declined to join a footnote in which Justice Thomas hinted that the Act might contain a still more sweeping preclusion of judicial review of immigration decisions.

Marinello v. United States, 138 S. Ct. 1101 (2018). The so-called Omnibus Clause of a criminal tax statute criminalizes “corruptly or by force or threats of force . . . obstruct[ing] or imped[ing]” the due administration of the Internal Revenue Code. The question presented was whether, to convict a defendant under this Clause, the government must prove that he acted with awareness of a pending tax-related proceeding, or under circumstances in which he could reasonably foresee that such a proceeding would commence. At oral argument, Justice Gorsuch asked counsel to address the Rule of Lenity. He also pressed the government’s lawyer for a clear answer to Justice Breyer’s suggestion that, under the government’s broad interpretation, the Omnibus Clause would apply to a person who fails to file a 1099 form after paying a neighborhood teenager to shovel snow from his driveway. The government’s lawyer eventually acknowledged that under the government’s interpretation, the teenager’s client could indeed be brought to justice. Apparently swayed by such concerns, Justice Gorsuch joined Justice Breyer’s majority opinion construing the Omnibus Clause as requiring awareness of a tax-related proceeding. In doing so, he parted ways with Justices Thomas and Alito: The former filed a dissent, joined by the latter, accepting the government’s broad construction of the Omnibus Clause and insisting that the Court should defer to Congress’s apparent intention to enact a “sweeping” statute.

Wilson v. Sellers, 138 S. Ct. 1188 (2018). The Antiterrorism and Effective Death Penalty Act (AEDPA) requires federal habeas courts to generally limit habeas relief to cases in which a state court’s decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of facts. This case presented the question of what a federal habeas court should do when the last state court to rule on the petitioner’s claim failed to articulate its reasoning. Adopting an approach followed by some circuit courts, the district court “looked through” the unreasoned decision of the state supreme court and applied the AEDPA analysis to the reasoning expressed by the lower state court. At oral argument, Justice Gorsuch returned to the theme of incentives, wondering what incentives the look-through approach could create—assuming that “states are rational and look for the least cost and the most deference.” Justice Breyer’s opinion for the Court adopted the “look through” approach, but Justice Gorsuch filed a dissent that was joined by Justices Thomas and Alito. Justice Gorsuch noted that the Supreme Court itself insisted that its summary affirmances “may be read only as signaling agreement with a lower court’s judgment and not necessarily its reasons,” and finding “no good reason to treat the work of our state court colleagues with less respect than we demand for our own.” Justice Gorsuch argued that the Court would have better respected Congress’s intention that AEDPA raise a high bar to the availability of habeas relief by requiring federal habeas courts to presume that an unreasoned final state court opinion “rests on any reasonable basis the law and facts allow.”

Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Dimaya was an extremely significant case, both for Justice Gorsuch and for the community of federal criminal practitioners. In his 2015 opinion in Johnson v. United States, 135 S. Ct. 2551, Justice Scalia wrote the majority opinion holding that a portion of the definition of the term “violent felony” in the Armed Career Criminal Act, which prescribes a 15-year mandatory minimum sentence for persons convicted of being a felon in possession of a firearm who have three prior convictions for such a felony, was void for vagueness. The pertinent portion of that definition covered any felony that “involves conduct that presents a serious potential risk of physical injury to another.” Pursuant to the Court’s precedent, courts applying this definition to a prior conviction may not examine the particular facts underlying the conviction. Instead, they apply the “categorical approach,” which in this context means that they ask whether the “ordinary case” of the commission of the offense defined in the statute involves the degree of risk required to bring it within the definition.

Justice Scalia’s Johnson opinion explained that two features of this definition combined to render it impermissibly vague. First, there was no established or reliable way for courts to determine what the “ordinary case” of any particular crime entailed. Second, the degree of risk necessary to bring an offense within the definition was unclear, particularly as applied to the “idealized ordinary case.” The Court accordingly voided this portion of the “violent felony” definition.

The broader potential implications of Johnson were immediately apparent because Title 18’s general definition of the term “crime of violence,” which is incorporated into a wide array of federal criminal statutes, is worded very similarly to the “violent felony” definition partially invalidated in Johnson. The Dimaya case presented the question of whether Johnson’s holding and reasoning voided the pertinent portion of the “crime of violence” definition, as incorporated in an immigration statute rendering certain criminal aliens deportable.

This was an interesting case for Justice Gorsuch to face in his first full term on the Court. On the one hand, the president who appointed him had advertised him as being “in the mold” of Justice Scalia—and Justice Scalia’s reasoning in Johnson seemed to require that this portion of the immigration law be held void. On the other hand, a central theme of the same president’s campaign had been a dedication to excluding and removing criminal aliens from the country—and voiding a portion of a law designed to accomplish that end would hardly tend to advance this agenda. In short, the case set Scalia-the-mantra on a collision course with Scalia-the-jurist. Further complicating the situation, the avatar of Scalia-the-mantra—i.e., Justice Thomas—had previously taken the position that the void-for-vagueness doctrine was inconsistent with the originalist understanding of the Due Process Clause. What to do?

At oral argument, Justice Gorsuch persistently pressed the government’s lawyer to address Justice Scalia’s points from Johnson regarding the arbitrariness of attempting to judicially construe the “crime of violence” definition—a task that seemed to require expert input or an essentially legislative inquiry into the nature and incidence of certain crimes. “Law clerks are excellent at gathering statistics,” he noted, “but they’re probably not as good as a legislative committee.” Later Justice Gorsuch switched gears and asked the government’s lawyer to address Justice Thomas’s originalist critique of void-for-vagueness doctrine as “a subspecies of substantive due process.” The government’s lawyer seemed unprepared to address this theory, which up to then had been championed by the generally reticent Justice Thomas:

MR. KNEEDLER: Well, I don’t know that we’ve addressed it in precisely those terms.

JUSTICE GORSUCH: That’s why I’m asking you now. (Laughter.)

In another notable (and somewhat curious) exchange, Justice Gorsuch interrupted a discussion of whether a line could be drawn cabining the strictest form of vagueness scrutiny in the civil context to cases involving the severest consequences, expressing a sort of caricature of a textualist originalist’s approach to the question:

MR. ROSENKRANZ: Well, Your Honor, this is the line this Court drew in Hoffman Estates. I mean, that was decades ago.

JUSTICE GORSUCH: What do you think about this line? Life, liberty, or property.

MR. ROSENKRANZ: That’s a great line.

JUSTICE GORSUCH: It’s right out of the text of the Due Process Clause itself.

Undaunted, the attorney again confirmed that it was “a great line” and pressed on with his argument.

In the end, Justice Gorsuch effectively sided with Scalia-the-jurist, but not without a measure of baby-splitting. Justice Gorsuch provided the crucial fifth vote for the portions of Justice Kagan’s opinion that straightforwardly applied Justice Scalia’s Johnson reasoning to the pertinent portion of the “crime of violence” definition, finding it void for vagueness. But he declined to join two portions of that opinion—one that relied on the gravity of the civil deportation penalty to reject the government’s plea for a weakened form of vagueness review in light of the case’s civil nature and another that refused to abandon the “categorical” approach to applying the “crime of violence” definition.

Chief Justice Roberts filed a dissent, joined by Justices Kennedy, Thomas, and Alito, in which he argued that textual differences between the “crime of violence” definition and the “violent felony” definition at issue in Johnson allowed the former statute to be distinguished.

Justice Thomas filed a separate dissent, joined in part by Justices Kennedy and Alito. Speaking for himself only, Justice Thomas reiterated his previously expressed position that the void-for-vagueness doctrine is inconsistent with the original understanding of the Due Process Clause. Justice Thomas believed that a faithful adherence to the framer’s intentions would require the Court to adopt the “law of the land” view of due process—pursuant to which due process requires only that the government proceed “according to written constitutional and statutory provision[s]” when depriving an individual of life, liberty, or property. Justice Thomas acknowledged that the Court had rejected that view in an 1856 opinion but believed that it nevertheless had considerable “textual and historical support.” Justice Thomas argued that English and early American decisions had addressed statutory vagueness through case-by-case interpretation and application of the Rule of Lenity, whereas the power to “strike down” statutes on vagueness grounds developed only around the turn of the 20th century. The difference in approaches is significant, he noted, because legislatures can abrogate interpretive rules, but they cannot overcome constitutional nullification. Justice Thomas further suggested that the void-for-vagueness principle should be viewed with suspicion because it had developed concomitantly with the “substantive due process” doctrine, which he viewed as an “open-ended authority to oversee [legislative] choices.” And Justice Thomas extended his originalist analysis still further, suggesting that the framers may not have intended to place any due process restrictions on laws governing the removal of aliens. In support, he cited the Alien Friends Act of 1798, which gave the president discretion to expel any alien he judged “dangerous to the peace and safety of the United States.” In addition, in the portions of his opinion joined by Justices Kennedy and Alito, Justice Thomas took the view that the Court should abandon the “categorical” and “ordinary case” approaches and allow courts to look to the facts underlying particular convictions in applying the “crime of violence” definition.

Justice Gorsuch filed a lengthy solo concurrence in which he did something his fellow justices typically have not done: He directly addressed Justice Thomas’s originalist arguments for jettisoning long-established doctrine. Justice Gorsuch characterized Justice Thomas’s perspective on the void-for-vagueness doctrine as a “serious and thoughtful one that merits careful attention” but declared that “[a]t day’s end” he could not accept it. In fact, having conducted his own originalist review of the void-for-vagueness doctrine, Justice Gorsuch declared it “a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.” Justice Gorsuch believed that “the weight of the historical evidence” showed that the Due Process Clause was intended to “ensure that the people’s rights are never any less secure against governmental invasion than they were at common law.” Justice Gorsuch opined that this principle included a guarantee of “fair notice” in both criminal cases and civil cases affecting a person’s life, liberty, or property, retroactively rendering his recitation of that line at oral argument less mysterious. Justice Gorsuch also concluded that the traditional understanding of the separation of powers provided further support for the void-for-vagueness doctrine because the doctrine ensures that legislatures cannot enact statutes so open-ended that they effectively delegate law-making power to the judiciary. On these grounds, Justice Gorsuch not only affirmed the validity of the void-for-vagueness doctrine, but declared himself even more firmly committed to it than the plurality: While the plurality saw a need to rely on the “special gravity” of the deportation penalty to find the doctrine applicable outside of the criminal context, Justice Gorsuch saw no reason to suggest that its application could be generally watered down in the civil context, provided that life, liberty, or property was affected.

Justice Gorsuch also rejected Justice Thomas’s suggestion that the framers did not intend for due process protections to apply to the removal of aliens. He observed that the Alien Friends Act to which Justice Thomas pointed was part of the Alien and Sedition Acts and was generally regarded as “one of the most notorious laws in our country’s history.” He noted that the law was understood as a temporary war measure, was widely condemned as unconstitutional by Madison and many others, went unenforced, may have killed the Federalist Party, and lapsed two years after its enactment. In light of this “fuller view” of the historical picture, Justice Gorsuch reasoned, “it seems doubtful the Act tells us a great deal about aliens’ due process rights at the founding.”

After making these points, Justice Gorsuch went on to explain why he refrained from joining Justice Kagan’s opinion with regard to the “categorical” and “ordinary case” analyses. Justice Gorsuch noted that he and the plurality had proceeded on the premise that courts applying the “crime of violence” definition must use these modes of analysis because the government had conceded the point. He observed that courts normally “do not rescue parties from their concessions,” and thus declined to join Justice Thomas’s call for an abandonment of the “categorical” analysis in favor of a direct assessment of the facts underlying particular convictions. But Justice Gorsuch went on to suggest that the government was free to argue for yet another mode of analysis, whereunder courts would ask not whether the alien’s crime of conviction “ordinarily” involves a risk of physical force, nor whether the alien’s “particular” crime involves such a risk, but rather whether the alien’s crime of conviction “always” involves such a risk. Justice Gorsuch also noted that Congress remained free to expand the list of specific crimes to which the statute applied, or to rewrite the voided portion of the “crime of violence” definition to cure its vagueness.

Byrd v. United States, 138 S. Ct. 1518 (2018). The Byrd case presented the question of whether a driver enjoys the protection of the Fourth Amendment with respect to a rental car when he or she is not listed as an authorized driver on the rental agreement.

At oral argument, Justice Gorsuch again, as he had in Dimaya, pressed counsel to address originalist views espoused by Justice Thomas. And here again, as in Dimaya, Justice Scalia’s shadow loomed over the case. In his questioning, Justice Gorsuch noted that the petitioner’s counsel had raised two theories—one based on property law and another based on the “reasonable expectation of privacy” approach derived from Justice Harlan’s concurrence in Katz v. United States, 389 U.S. 347 (1967). For decades, many had assumed that the Katz “reasonable expectation” test had supplanted the property-law-based approach to Fourth Amendment analysis that the Court employed prior to Katz. But in 2013, Justice Scalia’s opinion for the Court in Florida v. Jardines, 569 U.S. 1, held that the “reasonable expectation” test supplemented, rather than supplanted, “the traditional property-based understanding of the Fourth Amendment.” Id. at 11. Justice Gorsuch’s questioning expressed an interest in going a step further—i.e., reconsidering the “reasonable expectation” test entirely. He said that he “underst[ood]” the property-law approach, which relied on “an ancient common law rule” and could be found “in treatises all the way back to Joseph Story.” But he found the “reasonable expectation” test troubling. He wondered whether it was “empirical” or “normative,” and whether it drew in “regional and cultural norms across the country.” As he had in Dimaya, he worried about an approach that would call upon courts to engage in the inherently legislative task of “announc[ing] normatively” what they thought the law should be.

Justice Gorsuch’s concerns about the “reasonable expectation” test apparently ran deep. Justice Kennedy’s majority opinion applied the Katz test to find that the petitioner could enjoy a reasonable expectation of privacy in the rented car, notwithstanding the fact that his name did not appear on the rental agreement. But Justice Gorsuch joined in Justice Thomas’s concurrence, which called for an originalist reconsideration of the Katz approach to Fourth Amendment questions. Justice Thomas indicated that he joined the majority opinion because it “correctly navigate[d] our precedents, which no party has asked us to reconsider,” but he noted that he had “serious doubts” about the Katz “reasonable expectation” test. Justice Thomas observed that the petitioner also had pressed an argument based on the “original meaning of the Fourth Amendment,” but he approved of the majority’s decision not to take up that argument because the parties had failed to address what he believed to be “threshold questions”—what kind of property interest renders something a Fourth Amendment “effect,” what body of law governs that property interest, and whether that law renders the unauthorized use of a rental car illegal. “In an appropriate case,” Justice Thomas (joined by Justice Gorsuch) hinted, “I would welcome briefing and argument on these questions.”

McCoy v. Louisiana, 138 S. Ct. 1500 (2018). The McCoy case presented the question of whether the Sixth Amendment gives a criminal defendant the right to insist that his counsel argue his factual innocence, even if his counsel believes that the better strategy is to admit his factual guilt but argue for a lesser version of the crime. At oral argument, Justice Gorsuch expressed practical concerns regarding how to draw a line between decisions reserved to the client and decisions that may be made by counsel. Justice Ginsburg’s majority opinion held that criminal defendants have a Sixth Amendment right to direct their counsel not to admit their factual guilt. Justice Gorsuch, along with Justice Thomas, joined Justice Alito’s dissent. Justice Alito disagreed with the majority’s assessment of the facts, noting that while the petitioner’s counsel admitted that he had committed the acts underlying the offense, he did not admit that the petitioner had the mens rea that formed an element of the offense.

Collins v. Virginia, 138 S. Ct. 1663 (2018). This case presented the question of whether a partially enclosed portion of a home’s driveway was deemed part of the home’s “curtilage”—and thus effectively part of the home—for Fourth Amendment purposes. At oral argument, Justice Gorsuch’s questioning struck a decidedly originalist note. He suggested to the attorney representing Virginia that his argument would undermine Fourth Amendment precedent “going all the way back to the founding.” He characterized the state’s attempt to rely on the “automobile exception” as inconsistent with the exception’s basis—which, he noted, was an “originalist opinion” that “analogized [cars] to ships and vessels, going all the way back to 1790.” In the end, Justice Gorsuch joined Justice Sotomayor’s opinion for the Court, which held that the petitioner’s driveway was part of the curtilage and that the state could not rely on the automobile exception to justify the search. In doing so, he notably refrained from joining Justice Thomas’s concurrence, which argued that Mapp v. Ohio, 367 U.S. 643 (1961)—which requires state courts to apply the exclusionary rule—is inconsistent with the original understanding of the Fourth Amendment and should be reconsidered.

Hughes v. United States, 138 S. Ct. 1765 (2018). In Hughes, the Court addressed a technical question regarding the circumstances under which a defendant who was sentenced pursuant to a plea agreement may be eligible for a sentence reduction when the US Sentencing Commission subsequently enacts a retroactive reduction of the Sentencing Guidelines range applicable to his offense. Justice Gorsuch joined Justice Kennedy’s opinion for the Court, which adopted a position that broadened eligibility for sentence reductions in this context. Unlike Justices Thomas and Alito, he declined to join Chief Justice Roberts’ dissenting opinion, which favored a position that would have narrowed the availability of sentence reductions in this context.

Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018). The Rosales-Mireles case required the Court to clarify how the plain-error test applies to an error in the calculation of the sentencing range recommended by the US Sentencing Guidelines. Specifically, the case required the Court to determine when such an error satisfies the fourth prong of the plain-error standard, which asks whether the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Justice Gorsuch’s questioning at oral argument returned to themes he stressed in Dimaya and Byrd, asking whether the test was “normative” or “empirical” and worrying about an approach that could call upon courts to assess the views of the majority—a troubling approach for “an institution that’s designed to check majoritarian impulses.” Justice Kagan (no doubt angling for Justice Gorsuch’s vote) recited for the government’s lawyer an excerpt from then-Judge Gorsuch’s opinion for the Tenth Circuit in United States v. Sabillon-Umana, 772 F.3d 1328 (10th Cir. 2014), in which he rhetorically wondered, “what reasonable citizen wouldn’t bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands?” Unsurprisingly, in light of the view he expressed in Sabillon-Umana, Justice Gorsuch joined Justice Sotomayor’s majority opinion holding that “in the ordinary case,” a miscalculation of the Sentencing Guidelines range will satisfy the fourth prong of plain error review. In doing so, Justice Gorsuch declined to join Justice Thomas’s dissenting opinion, joined by Justice Alito, which charged the majority with reaching “far beyond what was necessary to answer the question presented,” and with “contraven[ing] long-established principles of plain-error review.”

Carpenter v. United States, 138 S. Ct. 2206 (2018). The Carpenter case presented another installment in the saga of the Court’s effort to reconcile established Fourth Amendment doctrine with advancing communications technologies. The case required the Court to determine how the Fourth Amendment applied to the government’s warrantless acquisition of “cell-site location information”—records indicating which cellular antenna, or “cell site,” the petitioner’s phone connected to at approximately 100 moments per day over the course of 127 days. The core of the government’s argument was the “third-party doctrine”—i.e., Supreme Court precedent holding that an individual lacks a reasonable expectation of privacy in material that he willingly turns over to third parties. Pursuant to this doctrine, the government maintained, the petitioner had no reasonable expectation of privacy in information that his phone shared with his wireless carriers.

As in Byrd and Collins, Justice Gorsuch’s questioning at oral argument stressed an originalist, property-rights-based understanding of the Fourth Amendment. He asked counsel for both parties to “put aside” the “reasonable expectation” test and address whether theft of the information would give rise to a conversion claim under state law—which, he suggested, could tend to show that the information was a “paper” or “effect” protected by the Fourth Amendment. And he challenged the government’s view that the Fourth Amendment did not restrict its ability to obtain information from third parties, declaring this view inconsistent with the “original understanding of the constitution and writs of assistance,” which reflected a concern with “the use by the government of third parties to . . . force them to help as their snitches and snoops.”

Chief Justice Roberts’ opinion for the majority stuck with the Katz “reasonable expectation” approach, holding that individuals have a protected expectation of privacy in cell site location information, and that collection of this information constitutes a search (generally) requiring a warrant. Each of the dissenting justices—Kennedy, Thomas, Alito, and Gorsuch—filed a separate dissent, but only Gorsuch declined to join in any of his fellow dissenters’ opinions. Justice Kennedy’s dissent agreed with the government’s argument that an individual lacks a reasonable expectation of privacy in information willingly shared with third parties. Justice Alito’s dissent argued that an order requiring a party to look through its own records and produce specified documents is not a search. And Justice Thomas’s dissent took the doubt about the Katz “reasonable expectation” test that he had expressed in Byrd a step further, arguing that the Katz test “has no basis in the text or history of the Fourth Amendment”; “invites courts to make judgments about policy, not law”; and “distort[s] Fourth Amendment jurisprudence.” After surveying the text and original understanding of the Fourth Amendment, as well as practical problems in the application of the Katz test, Justice Thomas declared the test “a failed experiment” that the Court was “dutybound to reconsider.”

Justice Gorsuch’s solo dissent took a more nuanced, pragmatic, and privacy-protective approach. Although he did not join Justice Thomas’s dissent advocating that Katz be jettisoned, he did tip his hat to Justice Thomas’s originalist critique of Katz, calling it “thoughtful[].” He repeated his concerns expressed in his questioning in Byrd as to whether the “reasonable expectation” test was “normative” or “empirical.” He worried that in some circumstances the Katz test might provide less protection against unreasonable searches than the framers intended. But he leveled stiffer criticism at the third-party doctrine. Indeed, it was this doctrine, rather than the Katz test, that Justice Gorsuch urged the Court to jettison. At the same time, while he seemed willing to let the Katz test remain in place, Justice Gorsuch urged the Court and litigants to follow the path blazed by Justice Scalia in Jardines, of recognizing a robust property-law-based rubric for analyzing Fourth Amendment questions that runs parallel to, and is of at least equal stature with, the Katz test. Justice Gorsuch pointed out that this form of analysis belies the third-party doctrine because property-law principles familiar to the framers would continue to recognize a property interest in certain items—such as bailments—willingly provided to third parties. In short, Justice Gorsuch argued, failing to give full force not only to the Katz test but also to the “more traditional” property-law-based approach to the Fourth Amendment “may mean failing to vindicate the full protections of the Fourth Amendment.” Justice Gorsuch dissented because he felt that the Katz test was too amorphous to reliably answer the question presented, whereas the petitioner had failed to press, and thereby forfeited, the traditional property-rights-based approach that was “perhaps his most promising line of argument.”

Currier v. Virginia, 138 S. Ct. 2144 (2018). The Currier case addressed the question of whether a defendant who agrees to have the charges against him considered in two separate trials can later successfully argue that the second trial offends the Fifth Amendment’s Double Jeopardy Clause. The defendant had been indicted for burglary, grand larceny, and being a felon in possession of a firearm. Concerned that the felon-in-possession count could prejudice the jury by drawing in evidence of his prior felonies, he agreed to sever this count and go to trial only on the burglary and grand larceny charges. After being acquitted on those charges, he argued that the Double Jeopardy Clause should bar his trial on the felon-in-possession count, or that the state at least should be precluded from relitigating issues resolved in his favor at the first trial.

Justice Gorsuch wrote the majority opinion holding that neither double jeopardy nor issue preclusion would restrict the state’s ability to prosecute the petitioner on the felon-in-possession charge. Justice Gorsuch explained that in light of the petitioner’s consent, the second trial did not bear any resemblance to the type of “oppressive practices” against which the Double Jeopardy Clause was directed. And Justice Gorsuch found the petitioner’s issue-preclusion argument inconsistent with the text and “original public understanding” of the Double Jeopardy Clause.

Justice Kennedy declined to join the latter portion of Justice Gorsuch’s opinion, deeming it unnecessary in view of the petitioner’s consent to the second trial. Justice Ginsburg filed a dissent, joined by Justices Breyer, Sotomayor, and Kagan, agreeing with the petitioner’s argument that issue preclusion applied to the second trial. Justice Ginsburg disapproved of Justice Gorsuch’s attempt—which (in view of Justice Kennedy’s non-joinder) spoke for only a plurality of the justices—to “take us back to the days before the Court recognized issue preclusion as a constitutionally grounded component of the Double Jeopardy Clause.”

So what have we learned? A couple of things.

First, one cannot read the Court’s argument transcripts without noticing a somewhat Scalia-esque—and very much non-Thomas-esque—attribute of Justice Gorsuch: He is not only an active but also an exceptionally persistent questioner. In statutory construction cases, an advocate should anticipate questions from Justice Gorsuch relating to the incentives that her proffered reading of a statute would create, how the lines she wants the Court to read into the statute are to be drawn, and whether her interpretation would require judges (and their clerks) to perform essentially legislative tasks. In constitutional cases, the advocate should anticipate questions about the original understanding of the constitutional provisions in question, including originalist positions espoused by Justice Thomas that oral advocates up to now may have assumed they would not be called upon to address. But in any case, advocates should anticipate that a question from Justice Gorsuch will introduce a number—and possibly a great number—of follow-ups, particularly if Justice Gorsuch does not believe they have given him a direct answer. Consider this exchange from the Marinello argument, involving the hypothetical teenage snow-shoveler’s customer:

JUSTICE GORSUCH: Well, Justice—Justice Breyer’s snow shoveler, all right, I—I think you—he’s a felon under your interpretation because the—the person who’s paying him knows that, above $600 or whatever it is, I have to file a 1099. I’m not doing it—I’m doing it for an unlawful advantage for the snow shoveler. I know it. I’m a—I’m a federal felon.


JUSTICE GORSUCH: For my—for my friend’s son’s snow shoveling business.

MR. PARKER: Well, I—


MR. PARKER: I think that that—

JUSTICE GORSUCH: I mean, the answer is yes, I think, isn’t it? (Laughter.)

MR. PARKER: That—that circumstance may come within the scope of the statute.

JUSTICE GORSUCH: I’m waiting for a yes or a no. You can just—it may come within the scope. So that’s a yes?

MR. PARKER: Yes. Yes, but I think that the—

JUSTICE GORSUCH: Okay. All right.

Advocates should put away any notion of dodging or fudging an answer to one of Justice Gorsuch’s questions, and they should not (as this excerpt from the Byrd argument shows) suggest tabling his question even momentarily:

[JUSTICE GORSUCH]: And I’m asking you, the government’s been living with the Katz rule for 50 years. How much of it’s empirical, how much of it’s normative, and how are we supposed to decide?

MR. FEIGIN: Your Honor, I’ll get to that in just one minute.

JUSTICE GORSUCH: No, if you could get to that straight away.

MR. FEIGIN: Okay. (Laughter.)

Second, in terms of his voting and opinion writing, Justice Gorsuch aligns more with Scalia-the-jurist than with Scalia-the-mantra (i.e., Thomas). He displays a strong interest in originalist analysis and is clearly interested in both giving Justice Thomas’s originalist views serious consideration and injecting them into the conversation at oral argument—as he did, for example, in Carpenter, Dimaya, and Byrd. But Dimaya and Collins suggest that Justice Gorsuch is not willing to join Thomas’s more radical originalism-based positions—such as that Mapp v. Ohio should be scrapped or that aliens facing removal should be stripped of due process protections. And Carpenter, Dimaya, Collins, and Class indicate that when Justice Gorsuch tries to read the minds of the framing generation, he is less likely than Justice Thomas to conclude that the framers favored positions that constricted the protections afforded to criminal suspects and defendants. Yet another lesson of Dimaya—as well as Marinello—is that Justice Gorsuch, to a greater degree than Justice Thomas, seems to share Justice Scalia’s concern regarding the due process implications of vague or overbroad criminal statutes.

In short, the record so far suggests that President Trump has delivered on his promise to appoint a justice “in the mold of Justice Scalia”—assuming that he meant Scalia-the-jurist, and not Scalia-the-mantra. He may well have not meant that—but if he did not, it seems that criminal defendants have reason to celebrate his mistake.

Daniel L. Kaplan is an assistant federal public defender in Phoenix, Arizona. His practice focuses on appeals, as well as habeas corpus and mandamus litigation.

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