Trump Promise Kept: Gorsuch Fits Scalia Mold on Criminal Law

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By Jordan S. Rubin

Then-candidate Donald Trump said on the 2016 campaign trail that he’d appoint a U.S. Supreme Court justice in the mold of Antonin Scalia.

He appears to have kept his word on that front as far as criminal cases go, according to legal analysts.

Like Scalia, a Reagan appointee who sometimes sided with the court’s Democrat appointees on criminal matters, Justice Neil M. Gorsuch has voiced support for criminal defendants’ rights but without voting to halt any executions.

The self-styled originalist and textualist has criticized government positions at arguments this term in the blockbuster cellphone surveillance case Carpenter v. United States and in other disputes involving the Fourth, Fifth, and Sixth Amendments, suggesting that he’ll vote for the convicts in these cases. This includes an immigrant the Trump administration wants to deport.

The 50-year-old Gorsuch, who joined the court last April, filled the vacancy created by Scalia’s Feb. 2016 death and held open by the Republican Senate majority’s refusal to hold a hearing or vote on then-President Obama’s nominee.

“I don’t think anybody familiar with Gorsuch’s record on the Tenth Circuit has been surprised by his early support for the textual limited-government provisions contained in our Bill of Rights,” professor Stephen E. Henderson told Bloomberg Law. Gorsuch sat on the Denver-based U.S. Court of Appeals for the Tenth Circuit prior to his high court appointment.

“Just like his predecessor whose seat he now occupies, Justice Gorsuch believes in those provisions and is willing to see out the consequences of those beliefs,” he said.

But those beliefs don’t necessarily lead to victories for death row inmates, Henderson and other court watchers pointed out.

Gorsuch’s votes, to date, have been “as advertised,” Robert Dunham of the Death Penalty Information Center in Washington told Bloomberg Law. The center doesn’t take an official position on the death penalty but often criticizes the way it’s implemented.

A death penalty proponent, Kent Scheidegger of the Criminal Justice Legal Foundation in Sacramento, agreed Gorsuch’s voting pattern in death penalty matters so far mirrors his predecessor’s, including in a case where racial bias was alleged to have infected the death sentence.

‘Pro-Defendant,’ Sometimes

Gorsuch put his judicial philosophy to work during several criminal law arguments this term, particularly in search and seizure cases.

He took the government to task for betraying its founding principles in three cases where defendants claimed law enforcement violated their rights through warrantless searches.

Scalia might well have taken the same approach.

“In many areas of constitutional criminal procedure, Justice Scalia was ‘pro-defendant,’ and I expect the same from Justice Gorsuch—not because either set out to right prevailing injustice, but because our Constitution is often pro-criminal defendant,” Henderson, who teaches criminal law and procedure at the University of Oklahoma College of Law in Norman, Okla., said.

Gorsuch showed his pro-defendant side during the Nov. 29 argument in Carpenter, where he questioned the government’s argument that it didn’t need a warrant to collect mobile phone location records from third parties.

Gorsuch sought to apply a property rights-based analysis championed by Scalia in United States v. Jones. In Jones, Scalia wrote for the majority that law enforcement needs warrants to track suspects using GPS devices, and that failing to get a warrant in that situation undermines Fourth Amendment property protections.

Picking up on Scalia’s property-based theory, Gorsuch told deputy U.S. solicitor general Michael Dreeben that the government’s position was at odds with the original understanding of the Constitution.

When Dreeben sought to justify the warrantless collection in Carpenter on the grounds that the government obtained the data from a third party wireless carrier rather than from the suspect’s phone itself, Gorsuch pointed to John Adams.

Adams “said one of the reasons for the war was the use by the government of third parties to obtain information,” forcing “them to help as their snitches and snoops,” Gorsuch pointed out.

“Why isn’t this argument exactly what the framers were concerned about?” Gorsuch asked.

“So say a thief broke into T Mobile, stole this information and sought to make economic value of it,” Gorsuch posited to Carpenter’s ACLU attorney Nathan Freed Wessler, referring to the cell phone records at issue in the case. “Would your client have a conversion claim, for example, under state law? Have you explored that at all?”

And if a person does have a property right in these records, “wouldn’t that, therefore, be a search of my paper or effect under the property-based approach approved and reminded us in Jones?” he asked Dreeben.

At the Jan. 9 argument in Byrd v. United States , Gorsuch asked assistant U.S. solicitor general Eric J. Feigin why the driver of a rental car couldn’t have excluded government agents from the vehicle just because he wasn’t listed as an authorized driver.

“As a matter of property law now and forever, a possessor would have a right to exclude other people but for those with better title,” Gorsuch said. So someone in this position “would have a right, I think you’d agree, to exclude someone who’s attempting to get in the car to hijack it, car-jack it.”

If the driver in Byrd could throw out a carjacker, why not the government? Gorsuch asked.

In another Fourth Amendment argument that same day, Collins v. Virginia, Gorsuch raised concerns about the argument that police should be able to walk up a driveway without a warrant and search a vehicle parked near a home.

The area immediately surrounding a home—the curtilage—has been given home-like protection, including in a 2013 decision authored by Scalia, where he wrote for the majority that police bringing a drug-detector dog to the front porch of a home without a warrant to sniff for drugs inside violated the Fourth Amendment.

Allowing warrantless searches inside, for example, garages would infringe these protections, Gorsuch suggested.

“Not many people live in their garage. Some people do,” Gorsuch observed. “And you’re suggesting that in those places the police can search without a warrant,” he said disapprovingly.

Life & Liberty for Immigrants

It wasn’t only in search and seizure cases that Gorsuch articulated a view of the Constitution that may lead to him vote for a criminal defendant.

At oral arguments in Sessions v. Dimaya Oct. 2, Gorsuch suggested a view of the due process clause that might favor a convicted burglar the Trump administration wants to deport.

James Garcia Dimaya argued that the statute permitting his removal was too vague, much like the similarly worded provision in the Armed Criminal Career Act that the court found unconstitutionally vague in a 2015 opinion, also written by Scalia.

But that was in a criminal case, and the immigration removal process is civil, so that opinion didn’t apply, the government argued.

Gorsuch wasn’t so sure the difference mattered here.

“The consequences in many civil matters can be very grave, more so even than a lot of criminal penalties,” Gorsuch said. “Civil forfeiture, take a man’s home, his entire livelihood, deport him.”

‘Can We Even Call it Assistance?’

At the Jan. 17 argument in McCoy v. Louisiana, Gorsuch’s questions focused on the text of the Sixth Amendment, which guarantees “assistance of counsel” for the accused.

The lawyer who represented Robert McCoy in a triple-murder case conceded McCoy’s guilt at trial. He hoped to build credibility with the Louisiana jury so that it might agree not to impose the death penalty at sentencing.

McCoy objected to the strategy, which failed.

“Can we even call it assistance of counsel?” Gorsuch asked. “Is that what it is when a lawyer overrides that person’s wishes?”

Those questions from Gorsuch were “telling,” and they were some of the most “to the point” of those asked during the argument, Dunham, of the DPIC, said.

But if Gorsuch votes for McCoy here, it wouldn’t necessarily signal that he feels a death penalty defendant deserves more favorable treatment than others—it could simply reflect Gorsuch’s view of what the Sixth Amendment requires generally, he said.

Won’t ‘Push Envelope’ For Killers

As was true of Scalia’s approach, Gorsuch’s strict stance on the limits of government power in criminal cases doesn’t necessarily translate to wins for death row prisoners.

Gorsuch has consistently joined Republican appointees Justices Clarence Thomas and Samuel A. Alito Jr. in voting to allow executions to proceed and in their criticism of legal obstacles to carrying out death sentences.

In one of his earliest votes, he joined his Republican-appointed colleagues April 20, 2017 in allowing several Arkansas executions to go forward. The four Democratic appointees each disagreed to varying degrees.

Gorsuch’s early death penalty votes, too, may have been expected.

“Neither Justice Scalia nor Gorsuch generally sets out to resolve what many see as pervasive injustices in our systems of criminal justice, such as in unfair imposition of the death penalty,” Henderson noted.

That means siding with the prosecution on Eighth Amendment questions as well as on issues of access to courts and resources, Dunham said.

Gorsuch also voted against two death row inmates in argued cases last term— one who fought a procedural roadblock to pressing his claim in a habeas petition, and another who sought an expert independent from the prosecution.

“I think Justice Scalia was likely to have voted the same way on those issues,” Dunham said.

The case of Keith Tharpe—a black death row inmate whose juror later made racist statements against blacks in a sworn affidavit—also illustrates Gorsuch’s tendency to vote with Thomas and Alito in matters of life and death.

The trio dissented both from the court’s Sept. 26 stay of Tharpe’s execution, and its Jan. 8 remand for further review.

Given the legal obstacles Tharpe still faces on remand, the majority’s decision to send his case back was pointless, at best, the dissent said.

Gorsuch’s dissents in Tharpe and in the case of death row inmate Vernon Madison both indicate “that Justice Gorsuch is not inclined to push the envelope to save a killer,” Scheidegger of the Criminal Justice Legal Foundation said.

“I think Justice Scalia would have voted the same way in both cases,” he said.

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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