POLITICS

From ObamaCare to the case of a burping kid, Gorsuch's legal writings show intellect, wit

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Republicans hoping President Trump picked the right man to succeed Supreme Court Justice Antonin Scalia may find intellect, clarity and even humor worthy of the high court’s longtime conservative lion in the writings of Judge Neil Gorsuch.

Whether defending religious freedom from government overreach or ridiculing grownups for throwing the book at a kid who burped in school, the 49-year-old jurist displayed a sharp pen, mind and wit in more than a decade on the 10th Circuit Court of Appeals. In the Harvard-trained judge’s most notable case, he weighed in on ObamaCare in the 2013 Hobby Lobby v. Sebelius. In doing so, he cut through the trappings of politics and governance to what he clearly viewed as the heart of the matter.

“For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability,” Gorsuch wrote on the case that questioned if employers could be forced to provide insurance covering contraception in spite of religious objections.

"[Freedom] does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

- Judge Neil Gorsuch

Freedom, Gorsuch wrote, “doesn’t just apply to protect popular religious beliefs: It does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

Then there was his dissent in A.M. v. Holmes (2016), a case in which a 13-year-old was arrested for disrupting gym class by burping too much. Gorsuch, who Trump nominated Feb. 1 to replace Scalia, eruditely revealed his exasperation with modern adults who abandon common sense when dealing with children.

“If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do?” Gorsuch wrote. “Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention.

“My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so,” he continued. “Respectfully, I remain unpersuaded.”

The subtle, but keen humor emerged in his opinion in the 2008 case, United States v. Hinckley. The defendant attacked the grammar of a statute interpreted to require him to register as a sex offender.

“Mr. Hinckley's interpretation is not without some grammatical appeal,” he wrote. “But neither is it the only parsing of subsection (d) a reasonable reader might make. Nor are we permitted by the Supreme Court to interpret isolated statutory phrases solely according to grammatical diagrams.”

In a concurring opinion in the 2016 Gutierrez-Brizuela v. Lynch, an immigration case that turned on how much courts should defer to decisions by executive branch officials, Gorsuch laid out his grasp of checks and balances.

“To adapt the law to changing circumstances, the founders thought, the collective wisdom of the people’s representatives is needed,” he wrote. “To faithfully execute the laws often demands the sort of vigor hard to find in management-by-committee. And to resolve cases and controversies over past events calls for neutral decision makers who will apply the law as it is, not as they wish it to be. [...] A government of diffused powers, they knew, is a government less capable of invading the liberties of the people.”

Gorsuch, whose friends and former colleagues praise as warm, funny and sincere, included in Holmes a precept that he would later paraphrase when Trump formally announced his nomination.

“A judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels,” he wrote.

Gorsuch’s opinions reveal a graceful, incisive writer who knows how to turn a phrase.  It’s too early to say if he’ll be as memorable as Scalia, but he’s got an archive that suggests it’s possible.