Neil Gorsuch

Monday marked the first anniversary of Justice Antonin Scalia’s death.  The voice of the Supreme Court’s conservative wing heavily influenced the way the Constitution was interpreted during his three decades on the federal bench.  As Judge Neil Gorsuch prepares for confirmation hearings, we briefly take a look at Scalia’s legacy and Gorsuch’s similarities to the oft-quoted late Justice.

                        On Originalism

The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring.  It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted. – Justice Antonin Scalia

Justice Scalia was an originalist – ascribing to the belief that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written.  Under this view, the Constitution, its amendments and federal statutes must be analyzed at face value.  Their words should not be reinterpreted and new rights need not be created.

Judge Gorsuch, poised to succeed Scalia if confirmed, had a similar but less blunt way of approaching originalism: “

[J]udges should … strive to apply the law as they find it, focusing backwards, not forwards [.]”

On Craftsmanship

Bryan Garner, with whom Scalia authored multiple books on the art of legal writing, said:

[Scalia] ‘wrote with tremendous clarity. He liked bright-line tests. He liked to make the law straightforward and clear. He did not like fuzzy thinking.’

‘He will be reread for generations…. He will be long considered one of the finest writers ever to have sat on any bench, certainly on the American bench. And his influence will be the cogency of his arguments and the clarity of his logic.’

Judge Gorsuch’s writing ability is also beyond reproach.  Harvard Law Professor Laurence Tribe calls Gorsuch “as smart as he is conservative” and says that “he writes elegantly.”  Adam Liptak of the New York Times believes his opinions differ from Justice Scalia’s in one major way, however: “His tone is consistently courteous and mild, while some of Justice Scalia’s dissents were caustic and wounding.”


If confirmed this spring, Judge Gorsuch, 49, will represent the first generation of Supreme Court Justices to have been influenced by Scalia’s rulings while still in law school.  Gorsuch clerked for Justices Byron White and Anthony Kennedy, and was classmates with Barack Obama.

Gorsuch has completed his 68-page questionnaire for the Senate Judiciary Committee, which offers a lengthy personal and professional history for senators to review in advance of confirmation hearings to be held in March or April.

For continuing coverage of the Gorsuch confirmation hearings, stay tuned to the Cockle Bur.