But Gorsuch!
WHEN DONALD TRUMP nominated Neil Gorsuch to the Supreme Court in January 2017, Demand Progress warned that the judge was “an extremist” who would “rubber stamp Trump’s assaults on Americans’ freedoms.” People for the American Way likewise described Gorsuch as “an ideological warrior who puts his own right-wing politics above the Constitution, the law and the rights of everyday people.” During Gorsuch’s confirmation hearings that March, Sen. Mazie Hirono (D–Hawaii) worried that “you rarely seem to find in favor of the little guy.”
Even before Gorsuch heard his first case as a Supreme Court justice in April 2017, it was clear from his decade on the U.S. Court of Appeals for the 10th Circuit that such attacks were unwarranted. Far from screwing over “the little guy” at every opportunity, he had shown unusual sensitivity to the predicament of vulnerable people confronted by implacable and frequently inscrutable agents of the state. “Among the folks that Trump had on his short list,” observes the Ohio State University law professor Douglas Berman, “Gorsuch seemed more defendant-friendly than most of the others,” and “that’s carried over to the Supreme Court.”
During Gorsuch’s first two terms on the Court, he took positions that should be applauded by people who care about criminal justice and civil liberties, including the critics who were so quick to condemn him as a heartless authoritarian. Except for capital cases, where “he doesn’t seem to have much of an affinity for the defense position,” Berman says, Gorsuch is “distinctly concerned about safeguarding defendants’ procedural rights.” While judges across the spectrum have long been willing to compromise civil liberties in cases involving unpopular defendants such as drug dealers and sex offenders, Berman notes, “Gorsuch has, to his credit, said, ‘No, no. The rules are the rules.’” His work shows that an honest attempt to apply the “original public understanding” of constitutional provisions frequently yields libertarian results, limiting government power and protecting individual rights.
That’s not to say Gorsuch himself is a libertarian. In his 2006 book on assisted suicide, he explicitly rejected the “libertarian principle” that would require legalization of that practice. The same principle, he argued, would also require the government to allow “any act of consensual homicide,” including
