As Justice Neil Gorsuch starts his first full term on the Supreme Court, many people cheer what they see as his conservatism, and many others mourn it. But an investigation of his appeals court opinions offers a more complicated picture about his beliefs and approach to the law.
Gorsuch is fiercely protective of the independence of the judiciary, and is skeptical about executive power. He is a bold thinker, willing to go in novel directions, and he is a fine writer.
Consider his views about the so-called Chevron doctrine, established by the Supreme Court in 1984, which says that whenever executive agencies interpret ambiguous congressional enactments, courts must uphold their interpretations so long as they are reasonable. This is a big deal in modern government, because it grants considerable power to the executive branch and the president.
Right now, Chevron is the Trump administration’s best legal friend.
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Suppose Trump’s Department of Health and Human Services interprets the Affordable Care Act so as to narrow its scope. Or suppose Trump’s Environmental Protection Agency decides the Clean Air Act does not include greenhouse gases. Or suppose Trump’s Department of Homeland Security says the Homeland Security Act allows it to collect social-media information from immigrants. Under Chevron, courts are required to respect these interpretations unless they are unreasonable.
Since 1984, the Supreme Court has not questioned Chevron. Lower-court judges usually don’t say the justices got it wrong. But in August 2016, Gorsuch did exactly that.
His central claim was that Chevron granted far too much power to the executive branch. In his view, Chevron is inconsistent with the independent role of the judiciary, and its obligation to say what the law is. In his words, “to resolve cases and controversies over past events calls for neutral decision makers who will apply the law as it is, not as they wish it to be.”
“Transferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions,” Gorsuch wrote.
Gorsuch contends courts must interpret the law on their own, and not defer to executive agencies or even the president. Chevron, he argued, “is a problem for the people whose liberties may now be impaired,” when “an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”
Gorsuch is concerned that a politicized executive branch might endanger people’s liberties. He is troubled by power within the president’s branch, and rejected a principle to which the Supreme Court has been committed for more than 30 years.
Chevron has allowed courts to have the final word so long as the law is clear, and there is a strong argument that where the law is not clear, the executive branch should have room to maneuver, precisely because it is politically accountable and full of technical experts.
But for the coming years, the more important point is that Gorsuch is on record as thinking that “powerful and centralized authorities like today’s administrative agencies” deserve “less deference from other branches.”
In 2016, a Democratic president was in charge of those agencies, and in the past Republican-appointed judges have shown significantly more interest in controlling the executive branch when it is in Democratic hands. But Gorsuch’s lower-court opinions are not partisan. Right or wrong, they do not display any kind of political favoritism.
That leaves an intriguing question: When people challenge Trump’s executive branch for having crossed legal lines, how will Gorsuch vote?
On the basis of what we know, my hunch is good news for the rule of law: No matter who appointed him, he won’t be especially deferential to “an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”
Cass R. Sunstein, a Bloomberg View columnist: firstname.lastname@example.org.