President Trump’s pick for the Supreme Court, Judge Neil Gorsuch, meets the most important criterion for the successor to Justice Antonin Scalia—that he be an articulate exponent of originalism. Scalia was the most consequential justice in the last half-century because he had the intellect to forge a consistent jurisprudence and the pen to make it widely known. When he arrived on the Court in 1986, originalism had no influence in the legal academy. Today, even among liberals, it is the jurisprudential theory to beat. He not only changed the law but the legal culture as well. Changing the legal culture is as important as making the right decisions in individual cases, because only a good culture will preserve those decisions for tomorrow.
Gorsuch is an avowed originalist and one of the best writers in the entire federal judiciary. That is not just my assessment, but that of Howard Bashman, who runs the leading blog on appellate decisions. It is also the verdict of the Green Bag, a magazine that makes annual assessment of legal writing. In 2014, it singled out Gorsuch’s opinion in Yellowbear v. Lampert as a great piece of legal writing. Here is the beginning of the opinion:
Andrew Yellowbear will probably spend the rest of his life in prison. Time he must serve for murdering his daughter. With that much lying behind and still before him, Mr. Yellowbear has found sustenance in his faith. No one doubts the sincerity of his religious beliefs or that they are the reason he seeks access to his prison’s sweat lodge—a house of prayer and meditation the prison has supplied for those who share his Native American religious tradition. Yet the prison refuses to open the doors of that sweat lodge to Mr. Yellowbear alone, and so we have this litigation. While those convicted of crime in our society lawfully forfeit a great many civil liberties, Congress has (repeatedly) instructed that the sincere exercise of religion should not be among them—at least in the absence of a compelling reason.
That’s a wonderful opening, clear and lucid, as accessible to a layman to lawyer. Gorsuch went on rule for Yellowbear under the Religious Land Use and Institutionalized Persons Act, a statute protecting the ability of inmates to exercise their faith unless the government can show a compelling reason why they shouldn’t be allowed to. It is very close to the standard in the Religious Freedom Restoration Act, under which Gorsuch ruled for the Little Sisters of the Poor in their challenge to Obamacare’s contraceptive mandate. Democrats are sure to attack Gorsuch over that ruling, but it’s important to remember that Gorsuch applied the same rigorous standard to the case of the Catholic nuns as he did to the case of a child murderer practicing a small, minority religion. He applies law fairly to the least of us.
The Yellowbear opinion is also notable for its learnedness. Gorsuch cites many law review articles, as well as William James. With his wide-ranging intellect, Gorsuch will take full advantage of originalism’s revived popularity among law professors, creating a powerful dialectic between the academy and Court.
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