Supreme Court expert and Brandeis Law professor weighs in on Trump's nominee

Brandeis Law Professor Justin Walker is one of the law school's resident experts on the U.S. Supreme Court. 

And for good reason: He was a student at Harvard Law School when now-Justice Elena Kagan was dean. Indeed, she recommended him for the two clerkships he received, the first for Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit (2010-11), and the second for her colleague, Justice Anthony Kennedy of the U.S. Supreme Court (2011-12).

In addition to his clerkships, he was a Pentagon speechwriter for former Secretary of Defense Donald Rumsfeld. He now teaches legal writing at Brandeis Law. 

Here, he shares his insights on President Donald Trump's nominee to the Supreme Court, Judge Neil Gorsuch.

Who is Judge Neil Gorsuch?

Judge Gorsuch is a federal appellate judge in Colorado who graduated from Columbia, Harvard and Oxford. He is married with two kids, loves the outdoors and is the son of the first female administrator of the Environmental Protection Agency. Among the judges who Gorsuch clerked for after law school was Justice Anthony Kennedy, which means Justice Kennedy will be the first justice ever to serve on the Supreme Court at the same time as a former clerk, if Gorsuch is confirmed.

If confirmed, how would Gorsuch change the makeup of the court?

President Trump said he would replace Justice Scalia with someone who will vote like Justice Scalia. If that’s what he’s done, then the ideological balance of the court will not change. But it’s not the difference between Gorsuch and Scalia that’s history-making; it’s the difference between Gorsuch and Judge Merrick Garland.

Judge Garland was, of course, Barack Obama’s nominee to the Court last year, which Senate Republicans blocked. What do you mean about the difference between him and Gorsuch?

Although Gorsuch and Garland are alike in many ways – both elite thinkers, both very well educated, both well respected by other judges of all persuasions – there is a significant difference. Garland was not conservative. Gorsuch is. On a court as evenly divided as today’s court, Garland would have would have made the “justice at the center of the court more liberal than at any point in nearly 50 years.” That won’t happen now.

How does his style compare to Justice Scalia’s?

Judge Gorsuch’s respect for Justice Scalia was so great that when he heard the news of Scalia’s death while skiing in Colorado, he wept. That doesn’t mean they are exactly the same in their style and approach to the law. But like Scalia, he considers himself a textualist, which means he says he feels bound to apply the law as it is written, not necessarily as he thinks it should be written. Of course, some textualists are accused of not always practicing what they preach. For Judge Gorsuch, time will tell. But his record suggests a fidelity to the text.

How does he compare to the current justices?

In many ways, he’s like them. Like Gorsuch, they were all federal appellate judge before becoming Supreme Court justices. Like him, they all studied at Harvard or Yale. And like him, they all built careers that put them at the top of their field through their hard work and intellectual firepower. If Judge Gorsuch is confirmed, I think his eight colleagues will see someone who shares their high standards, their passion for the law and their respect for collegiality.

He has been described as taking an originalist approach to the Constitution. Can you explain what this means?

Originalists care about what the text of Constitution originally meant to the people who ratified it. But like most things in law, it’s more complicated than that. Few originalists care only about original meaning; for example, even Justice Scalia sometimes deferred to precedents that were inconsistent with it. And likewise, among the many judges who don’t label themselves “originalists,” few of them care nothing about original meaning. As Justice Kagan said last year, “When addressing constitutional meaning, does anyone now ignore the founders’ commitments? … The answer is no – or mostly no.”

When the court has all nine justices in place, what are some of the major issues you would expect it to tackle in coming years?

There are lots to choose from, but I’ll mention three that come to mind.

One is free speech. The recent court has been among the most pro-speech courts ever, especially when it comes to speech that majorities of justices have viewed as political – and that their dissenting colleagues consider either not political, or not speech. How much farther will this court go to strike down limits on what they view as political speech protected by the First Amendment?

Another area is gun control: Heller said you have the right to a handgun in your home. What about outside your home? What about other kinds of guns? Stay tuned.

A third area I’ll mention isn’t the most high profile, but it’s one that could have a big impact on who has power in Washington. When it comes to federal agencies, how much power should those agencies have? Under current precedent, they have a lot of flexibility in interpreting the statutes that empower them. And under current precedent, Congress has a lot of flexibility in granting those agencies somewhat undefined authorities. There are some signs Judge Gorsuch is skeptical of some of those precedents, and if he’s confirmed, he might have company.

How long might Gorsuch serve?

Judge Gorsuch is 49, the youngest nominee in a quarter century. The oldest justice ever was Oliver Wendell Holmes, at 90. In other words, if Gorsuch is confirmed, I doubt he’ll tell his real estate agent he’s looking to rent.

See more of Walker's thoughts on the changes facing the Supreme Court here:

WDRB, Jan. 31, 2017

WHAS-11, Jan. 31, 2017