Two words that are regularly thrown around when discussing the Supreme Court (and politics generally) are “liberal” and “conservative.” On this note, recently a question that has gained much traction has to do with how liberal or conservative a Justice Judge Gorsuch will be if confirmed to the Court. A large problem with these terms is that they lack clearly defined contours. Does it refer to big vs. little government? Perhaps government rights vs. individual rights? Or maybe rights for the minority population vs. rights of the majority?
Suffice it to say many studies try to put the Justices in liberal or conservative buckets. We see this with applications to the current Court in attempts to predict where Judge Gorsuch will fit on the Court’s ideological spectrum if he should be confirmed to the Court. This approach has been critiqued for how the ideology measures are developed, and mainly for how appeals judges’ ideologies are measured as a product of their appointing President and home state senators.
Another way to measure to look at a judges’ policy positions though is through the language judges’ use in their opinions and the outcomes they support. In the Supreme Court for instance a conservative/liberal dichotomy might simply be derived by looking at the Courts decisions in Bowers v. Hardwick where the Court upheld a state law criminalizing sodomy and Lawrence v. Texas where the Court struck down a similar statute. These opinions are notable not only for their outcomes, but also for their reasoning where in one case state governments are given wide latitude to define the rights of individuals and in the other, individual liberty is found to be superior to a state’s regulation.
Scholars Benoit, Laver, and Lowe developed an approach called Wordscores where opinions can be placed along an ideological spectrum based on certain parameters. Using this software tool I located five of Judge Gorsuch’s more liberal written decisions and five of his most conservative decisions according to the opinions’ wordings. While there is no unequivocally objective way to measure political preferences, Wordscores creates the dimensions based on content analysis of the opinions. The user begins by inputting base texts to define the ends of the ideological spectrum. An example is that Bowers v. Hardwick helped to define the right boundary of the spectrum while Lawrence v. Texas helped define the left boundary for this analysis.
With this spectrum I plugged in over 180 of Judge Gorsuch’s majority opinions, dissents, and concurrences to locate those at either end. To reiterate, the focus here is the opinion language and not the ultimate outcome of any decision. The political issues in each case should not factor into whether an opinion is considered more liberal or conservative. Furthermore, the results are only exploratory as the software itself does not inherently distinguish between conservative and liberal language, it only creates this scale based on the input documents that are used to develop this scale. Here are the findings (the cases are ordered from most liberal language and most conservative language):
Most Liberal
Case Facts (from opinion): “Mr. Mink, a student at the University of Northern Colorado (“UNC”), created a fictional character, “Junius Puke,” for the editorial column of his internet-based journal, The Howling Pig. Mink v. Suthers, 482 F.3d 1244, 1249 (10th Cir. 2007), cert. denied, 552 U.S. 1165, 128 S. Ct. 1122, 169 L. Ed. 2d 949 (2008) (“Mink I“). The editorial column displayed altered photographs of Junius Peake, a UNC professor, wearing dark sunglasses and a Hitler-like mustache. Id. at 1249. Junius Puke’s editorial column addressed subjects on which Mr. Peake would be unlikely to write, in language he would be unlikely to use, asserting views that were diametrically opposed to Mr. Peake’s. See id.”
Gorsuch Concurrence Excerpt: “The question the court confronts in Section II.B.1.a is whether probable cause existed to think that Mr. Mink’s column constituted “criminal libel.” I agree with my colleagues that the answer to that question must be “no.” I reach this conclusion for a simple and straightforward reason: this court has already said so. Pring v. Penthouse International, Ltd., 695 F.2d 438 (10th Cir.1982), established in this circuit the rule that the First Amendment precludes defamation actions aimed at parody, even parody causing injury to individuals who are not public figures or involved in a public controversy. Pring is binding on us, answers the probable cause question at issue, and is thus the beginning and end of my inquiry on that question.”
Why Liberal? Judge Gorsuch allows for parody protecting the First Amendment right (a strong theme for Judge Gorsuch) of the individual accused of defamation.
Case Facts (from opinion): “Plaintiff-Appellant A.M. filed this action under 42 U.S.C. § 1983 on behalf of her minor child, F.M., against two employees of the Albuquerque Public Schools—specifically, Cleveland Middle School (“CMS”) Principal Susan LaBarge and Assistant Principal Ann Holmes—and against Officer Arthur Acosta of the Albuquerque Police Department (“APD”). A.M. brought several claims stemming from two school-related events: (1) the May 2011 arrest of F.M. for allegedly disrupting his physical-education class, and (2) the November 2011 search of F.M. for contraband.”
Gorsuch Dissent Excerpt: Even when the antics required a teacher to leave her class for several minutes, In re Brown, 562 S.E.2d 583, 586 (N.C. Ct. App. 2002), or otherwise “divert[ed] the teacher or the principal from other duties for a time,” P.J.B. v. State, 999 So. 2d 581, 587 (Ala. Crim. App. 2008) (per curiam). See also, e.g., S.L. v. State, 96 So. 3d 1080, 1083-84 (Fla. Dist. Ct. App. 2012). Respectfully, I would have thought this authority sufficient to alert any reasonable officer in this case that arresting a now compliant class clown for burping was going a step too far.
Fun Line from Gorsuch: “Often enough the law can be “a ass — a idiot,” Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838) — and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives.”
Why Liberal? Supports individual’s rights and not police action in a case examining whether the authorities exceeded their authority.
Case Facts (from opinion): “This challenge to the National Labor Relations Board’s (the Board) petition for enforcement questions whether the Board may disregard interim earnings when calculating backpay awards for employees whose labor injury falls short of unlawful termination.”
Gorsuch Dissent Excerpt: “The NLRB’s order effectively seeks to adopt a new rule governing the calculation of backpay in cases where a collective bargaining employer unlawfully reduces the hours of unionized employees. There can, of course, be no doubt that Congress has invested the Board with considerable power to shape labor relations in this country and to provide remedies like backpay in response to employer misconduct. But in our legal order federal agencies must take care to respect boundaries of their congressional charters.”
Why Liberal? This case follows a common theme of Judge Gorsuch’s jurisprudence that views executive agencies’ actions exceeding the agencies’ authority delegated by Congressional statute. Judge Gorsuch’s opinion essentially reigns in the power of the executive branch.
Case Facts (from opinion): Today [the Board of Immigration Appeals] brings us a new case that involves a (slight) variation. Like Mr. De Niz Robles, Hugo Gutierrez-Brizuela applied for adjustment of status in reliance on our decision in Padilla-Caldera I during the period it remained on the books. About that much there is no dispute. But unlike Mr. De Niz Robles, Mr. Gutierrez-Brizuela applied for relief during the period after the BIA’s announcement of its contrary interpretation in Briones yet before Padilla-Caldera II declared Briones controlling and Padilla-Caldera I effectively overruled.
Gorsuch Concurrence Excerpt: “For whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that before them. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day. Those problems remain uncured by this line of reply.”
Interesting Additional Quote: “All of which raises this question: what would happen in a world without Chevron? If this goliath of modern administrative law were to fall? Surely Congress could and would continue to pass statutes for executive agencies to enforce.”
Why Liberal? Similar to the above example, in this concurrence Judge Gorsuch clearly questions the deference to agency interpretation in this case.
Case Facts (from opinion): The question we face is whether this provision forecloses Patricia Caplinger’s state law tort suit against Medtronic. Medtronic produces Infuse, a device that stimulates bone growth to repair damaged or diseased vertebrae. When it approved the device for sale, the FDA required the company to include a warning label instructing that Infuse should “be implanted via an anterior” surgical approach. The label further cautioned that the device’s “safety and effectiveness … in surgical techniques other than anterior open or anterior laparoscopic approaches have not been established” and that “[w]hen degenerative disc disease was treated by a posterior lumber [sic] interbody fusion procedure with cylindrical threaded cages, posterior bone formation was observed in some instances…Despite this warning, Ms. Caplinger alleges, Medtronic and its representatives promoted Infuse for use in a posterior surgical approach—an “off-label” use as it’s known in the industry. ”
Gorsuch Opinion Excerpt: “That’s not to say another plaintiff won’t ever be able to succeed where Ms. Caplinger has failed. For example, we don’t question the possibility that buried somewhere in the heap of federal law parallel provisions exist to save claims like Ms. Caplinger’s. After all, the FDA’s medical device regulations alone cover 592 pages of eight-point type and the Supreme Court has suggested that in searching for a parallel federal duty a plaintiff may scour them all as well as the statute itself.”
Why Liberal? Although Justice Gorsuch rules for the company in this tort suit, much of the language is devoted not only only exploring how future litigants could prevail in similar cases, but also to describing the particular arguments a litigant might use to prevail where the appellant in this case did not.
Most Conservative
Case Facts (from opinion): “Tommy Arrowgarp, an inmate proceeding pro se, was convicted of three federal crimes stemming from his sexual abuse and assault of a minor. On direct review we affirmed his convictions. United States v. Arrowgarp, 253 F. App’x 790 (10th Cir. 2007). Earlier this year Mr. Arrowgarp filed in the district court a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The district court denied this motion as untimely and not warranting equitable tolling, and denied a motion for an evidentiary hearing as moot.”
Gorsuch Opinion Excerpt: “Even were we to assume Mr. Arrowgarp’s attorney committed error and that error was exceptional, Mr. Arrowgarp still would fail because he has not shown that he diligently pursued his claims within the meaning of our precedents. Mr. Arrowgarp alleges only that he and his family contacted his lawyer and the public defender’s office. Merely seeking the status of his case, without more about the regularity of such inquiries, is not diligent pursuit.”
Why Conservative: The opinion forecloses all but the most miniscule possibility of challenging a verdict based on an attorney error.
Case Facts (from opinion): “Early one summer’s morning a caller asked sheriff’s deputies to check out a suspicious truck parked near a quiet country road in Oklahoma County. The deputies obliged and when they arrived on the scene they found Bradley Arthurs alone and passed out behind the wheel, with his truck’s engine running and the headlights on. As they helped a clearly intoxicated Mr. Arthurs out of his truck, the deputies noticed a gun wedged between the driver seat and the console. And that discovery eventually led to Mr. Arthurs’ indictment, for it turns out he was [**2] a felon barred by federal law from possessing a firearm. 18 U.S.C. § 922(g)(1). At the end of it all, a jury found Mr. Arthurs guilty of the charge against him, and it is this result and the sentence that followed that Mr. Arthurs now asks us to undo.”
Gorsuch Opinion Excerpt: Mr. Arthurs’ last salvo on the jury instructions may be more interesting, but it can prove no more successful in this court at this time. At trial, Mr. Arthurs argued that to prevail under § 922(g) the government must show not only (1) that the defendant knew at the time of his conviction he possessed a gun, but also (2) that he knew he was a felon. Accordingly, Mr. Arthurs asked for a jury instruction incorporating both of these points. But the district court held that the law doesn’t require the government to prove the second of these mens rea elements, only the first, and issued jury instructions in that light. It’s well known by now that some of us on this court read the plain language of § 922(g) just as Mr. Arthurs does. But it’s also well known that ours remains at this date a minority view, and the district court’s instructions comport with this court’s binding precedents that all of us are obliged to respect.”
Why Conservative? Judge Gorsuch’s opinion uses Tenth Circuit and Supreme Court precedent to go through and deny each of the appellant’s objections.
Case Facts (From Opinion): “Facing some 16 felonies charges, Randy Beck declined a plea offer from state prosecutors that, if endorsed by the trial court, would have required him to spend fifteen years in prison. Instead, Mr. Beck chose to enter a non-negotiated guilty plea and take his chances at sentencing. But just before entering his plea, Mr. Beck was arrested on new charges still and this development does not appear to have helped his cause. At sentencing, the trial court issued an eighty-one year prison term. In response, Mr. Beck soon filed a motion seeking to withdraw his guilty plea but this the trial court denied. Mr. Beck then appealed to the Oklahoma Court of Criminal Appeals, asserting that his plea wasn’t voluntary, his trial counsel were ineffective, and that his sentence violated the Eighth Amendment. The appeal proved unsuccessful, as did Mr. Beck’s later application for state post-conviction relief.”
Gorsuch Opinion Excerpt: “Mr. Beck nowhere addresses the district court’s holding that, in light of the intervening charges against him, it is not “reasonably probable” that the prosecution would have continued to extend its offer or that the state trial court would have accepted it. In fact, in his [certificate of appealability] COA application Mr. Beck fails to comment at all on Strickland’s prejudice requirement. Simply put, he fails to supply any reason of any kind to question the correctness of the district court’s prejudice analysis.”
Why Conservative? This is another criminal case where Judge Gorsuch dismisses all of arguments raised by the appellant and explains why they are insufficient to warrant further review.
Case Facts (from opinion): “The police officers searched Mr. Cos’s apartment and found $ 500 and a scale. They also interviewed Mr. Cos. He told them that he had been dating a girl that lived with him, whom he had known for about thirty-five days. Later, during the [*1119] same interview, Mr. Cos stated that the girlfriend had been living at his apartment for approximately three months and had a key to his apartment. During the interview, neither Mr. Cos nor the officers mentioned Ms. Ricker by name, and the government does not now contend that Ms. Ricker was the girlfriend to whom Mr. Cos referred.”
Excerpt from Gorsuch Dissent: “Congress has governed by statute our jurisdiction over appeals taken by the United States from orders suppressing evidence, providing in pertinent part that “[t]he appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.” 18 U.S.C. § 3731. We have previously held this deadline to be jurisdictional in nature. See United States v. Martinez, 681 F.2d 1248, 1254 (10th Cir.1982).[1] It is settled law that, when a party chooses to file a motion to reconsider, the deadline for filing a notice of appeal begins to run from the date of the order denying the motion. See United States v. Ibarra, 502 U.S. 1, 6-7, 112 S. Ct. 4, 116 L. Ed. 2d 1 (1991). But it is equally settled in this circuit that a second or subsequent motion to reconsider has no effect on this calculus and will not toll the filing deadline. See United States v. Marsh, 700 F.2d 1322 (10th Cir.1983).”
Why Conservative? Judge Gorsuch dissents from the court’s finding for the appellant (the accused), based on tolling principles derived from the language of precedent and Congressional statutes. Judge Gorsuch, however, find against the government’s equitable tolling arguments.
Case Facts (from opinion): “At trial a jury found Coty Wallace unlawfully possessed an AK-47 in light of his status as a felon. Now on appeal Mr. Wallace asks us to undo that verdict, but we do not see how we might.”
Gorsuch Opinion Excerpt: “The problem is, of course, that the Constitution’s great guarantee against the constructive amendment of indictments at trial isn’t concerned with guarding against typos, but with ensuring the defendant receives fair notice of the charges against him and requiring the government to win the approval of its citizens before prosecuting a specific crime. Farr, 536 F.3d at 1179, 1184. And in this case, typo or no typo, there can be no serious question either that Mr. Wallace received his fair notice or that the government prosecuted the specific crime on which the grand jury indicted, for it is beyond cavil that the “gun described in the indictment was the same gun produced at trial.” United States v. Rucker, 417 F. App’x 719, 723 (10th Cir. 2011).”
Why Conservative? Following the same pattern as the above examples, in this instance Judge Gorsuch looks to the words of the Constitution, statutes, and case law to cut down each of the appellant’s arguments for overturning his verdict.
What Does This All Mean?
First, this shows how Judge Gorsuch may skew more liberal in his separate opinions (concurrences or dissents). Four of the more liberal opinions here are separate opinions while only one of the more conservative opinions is a separate opinion. This is not to say this is or will always be the case, and examples such as Judge Gorsuch’s takes in religious liberty cases such as Hobby Lobby show both how he is consistent with his First Amendment principles and how they can lead to conservative results as well.
Second, in upholding First Amendment principles, Judge Gorsuch may ultimately reach liberal results. We see this with his concurrence in Mink v. Knox supporting the view of First Amendment protection for parody.
Next, Judge Gorsuch tends to write conservatively when supporting the government’s position in criminal matters. Four of the five conservative opinions involve the United States as appellee and Judge Gorsuch predominately favors the government’s arguments, especially when they accord with statutory language. We also see exceptions to this rule as with his opinion in the (albeit less serious) criminal matter examined in A.M. ex rel. F.M. v. Holmes.
Lastly, Judge Gorsuch’s approach to the Chevron doctrine which tends to lead to decisions against agency deference can be found in his more liberal opinions. Two of the five liberal opinions focus almost exclusively on reasons not to defer to agency interpretations in those cases and the additional quote from Gutierrez-Brizuela v. Lynch helps to hammer this point home.
On Twitter: @AdamSFeldman
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You should have included United States v. Makkar, No 14-5147; 10th Cir. 2015, under “liberal opinions” authored by Judge Gorsuch. In an appeal of convictions under the Analogue Act, J. Gorsuch wiped the courtroom floor with the government’s arguments and wrote a wonderful pithy opinion that essentially wished the government good luck should they elect to retry the defendants when vacating the convictions under the Analogue Act. “….as we’ve seen, it’s unclear at this point
whether the men can be lawfully retried consistent with the law’s demands.” The opinion is a delight to behold for those of us in the trenches who are tired of the government’s abuse of its power to charge and incarcerate. As for what happened on remand, see; Case No. 13-CR-0205-CVE (N.D. Okla. Sep. 8, 2016) Not a pretty picture for the government.
And you should definitely include United States v. Ackerman; 14-3265, 10th Cir 2016, where J. Gorsuch, writing the opinion,reversed a district court’s denial of a motion to suppress warrantless seizure of evidence of child pornography finding that a putative ‘private’ entity was actually qualified as a governmental entity and therefore a warrant should have been obtained.
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