Justice Gorsuch channels his inner-Scalia, and that’s good for criminal defendants

The late Justice Antonin Scalia often joked that he was “the darling” of the criminal defense bar and the “poster child” for the National Association of Criminal Defense Lawyers. He was right. More than any other Justice on the Supreme Court with him, he ruled for criminal defendants on important cases dealing with the confrontation clause, sentencing issues, the right to a jury, and probable cause to name a few.

When Justice Neil Gorsuch replaced Scalia, many feared that he would not be nearly as friendly to criminal defense issues. But Gorsuch has proved those critics wrong. Like Scalia, Justice Gorsuch may also get his own poster from NACDL. Some examples from this Term:

1. United States v. Haymond. Justice Gorsuch wrote the 5-4 majority opinion, which is joined by the 4 more liberal Justices, in favor of a defendant who was found guilty of possessing child pornography. The question for the Court was whether judges had the power to sentence defendants to an additional term of imprisonment without a jury finding beyond a reasonable doubt. Justice Gorsuch said no way: “Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.” There’s lots of other really good language in the opinion, explaining that the right to trial by jury, together with the right to vote, is “‘the heart and lungs, the mainspring and the center wheel’ of our liberties, without which ‘the body must die; the watch must run down; the government must become arbitrary.’” (Quoting letter from Clarendon to W. Pam (Jan. 27, 1766), in 1 papers of John Adams 169 (R. Taylor ed. 1977)). Great stuff.
2. United States v. Davis. Gorsuch here again wrote the 5-4 majority, joined by the 4 more liberal Justices, this time in favor of a defendant convicted of using a firearm in connection with a crime of violence. Gorsuch, like Justice Scalia, was concerned with the vagueness of criminal statutes. He found the statute unconstitutional because it was unconstitutionally vague. Check out this powerful introduction: “In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.” Interestingly, Justice Kavanaugh writes the dissent. He starts out all law and order: “Crime and firearms form a dangerous mix.” Well, of course. But as Gorsuch explains, that’s not really the question.
3. Gamble v. United States. In this case, Justice Gorsuch joined Justice Ruth Bader Ginsburg (Justice Scalia’s best friend on the Court) in dissent. The case addressed the separate sovereign doctrine and whether the feds can prosecute for the same exact crime that already was prosecuted by a state system. He said that when “government may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is the poor and the weak, and the unpopular and controversial who suffer first — and there is nothing to stop them from being the last.”
4. Gundy v. United States. Here again, Justice Gorsuch was in dissent. The case involved a technical question of whether the legislature could transfer power to the attorney general, specifically with regard to the Sex Offender Registration and Notification Act. Justice Kagan wrote the plurality, saying yes. Justice Gorsuch wrote a lengthy dissent, explaining that it was wrong to “endow the nation’s chief prosecutor with the power to write his own criminal code.”
5. Rehaif v. United States and others. Justice Gorsuch has also joined other Justices ruling for criminal defendants. Rehaif is one example from this term, and it’s a really important case where Gorsuch signed onto Justice Breyer’s opinion. Rehaif held that in a gun prosecution, the prosecution must prove not only that the defendant knew he was in possession of a firearm, but also that he knew why he couldn’t possess the firearm (in Rehaif’s case, because he was illegally in the country). The case is important because it reaffirms the requirement that before you can be found guilty of a crime, you must knowingly engage in each and every element of that crime.

And just this morning, Gorsuch dissented in Mitchell v. Wisconsin. Justice Alito’s opinion (which was joined by so-called liberal Justice Breyer) concluded that when a driver is unconscious and cannot be given a breath test, the existent-circumstances doctrine generally permits a blood test without a warrant. Gorsuch did not sign on to this opinion and said the case should not have even been decided.  

Justice Gorsuch is far from perfect. He is pro-death penalty. He dissented in Flowers v. Mississippi, the case where the prosecutor illegally struck black jurors. These decisions have led some, rightfully, to criticize Gorsuch, like the well-respected Leah Litman. But Litman is wrong to minimize what Gorsuch has done, saying he only “sometime departs” from his conservative colleagues.

The truth is that he’s been quite good for the rights of criminal defendants, as was his predecessor Justice Scalia. Justice Gorsuch doesn’t knee-jerk vote for the government like Justices Alito and Thomas. And as Litman rightly points out, he even votes for criminal defendants when his more liberal colleagues (like Breyer) do not.

Instead of criticizing Gorsuch for not doing the right thing on every single criminal justice issue, we should be optimistic that he will continue to channel Justice Scalia’s independent streak on these issues.

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country. Follow him on Twitter @domarkus.