Many positive things have been and will be said about Judge Neil Gorsuch leading up to his confirmation hearing. Deservedly so. There is a lot to like about him, including his intellect and commitment to textualism. But some have wondered: if Judge Gorsuch is confirmed as Justice Antonin Scalia’s successor, would he change the arc of Supreme Court decisions on criminal law and procedure, issues critical to a prosecutorial office like my own?
Judge Gorsuch’s record as a federal appeals judge seems to indicate the answer is no: His opinions, like Scalia’s, balance the interests of law enforcement with individual liberty.
Justice Scalia recognized that some of the government’s most consequential powers are those it brings to bear in the criminal justice system. We rightly count on the state to protect us from criminals and to appropriately mete out justice for broken laws. If the state failed to fulfill those functions, anarchy would reign. But the government’s powers to investigate crime and to indict defendants can result in serious intrusions on individual liberty. And government-sponsored loss of liberty leads to tyranny.
Those tensions caused the Founders to limit the government’s criminal-justice powers through structural safeguards enshrined in the Fourth, Fifth, and Sixth Amendments. Good judges defend those safeguards, insisting that the government honor them while enforcing the law.
Justice Scalia and Judge Gorsuch both fit that mold. To show their similarities, consider these four excerpts, two from each judge’s criminal law opinions. Before jumping to the answers below, can you identify each passage’s author?
1. “Instead of setting forth exact limits of the government’s search and seizure powers in some numbingly detailed (and no doubt quickly antiquated) list of do’s and don’ts, the framers of the Fourth Amendment more simply and ingeniously forbade all ‘unreasonable searches and seizures.’”
2. “Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted [investigatory] stops without reasonable suspicion. We should not do so for drunken driving either.”
3. “The Fourth Amendment’s protection of the home has never been tied to measurement of the quality or quantity of information obtained.”
4. “Since time out of mind the law has prevented agents from exercising powers their principals do not possess and so cannot delegate. That is a rule of law the founders knew, understood, and undoubtedly relied upon when they drafted the Fourth Amendment—for what would have been the point of the Amendment if the government could have instantly rendered it a dead letter by the simple expedient of delegating to agents investigative work it was forbidden from undertaking itself?”
For those keeping score, the authors are (1) Gorsuch (dissenting in United States v. Nicholson), (2) Scalia (dissenting in Navarette v. California), (3) Scalia (in Kyllo v. United States), and (4) Gorsuch (in United States v. Ackerman).
So Americans of all political stripes need look no further than Judge Gorsuch’s own words to reassure themselves that he strives to strike the same careful balance as Justice Scalia on critical criminal-law issues. We can count on him, as Justice Gorsuch, to join opinions reminding prosecutors that their duty in a criminal case—for the good of all Americans—is not that they “shall win a case, but that justice shall be done.”