June 25, 2019


Washington owes Supreme Court Justice Neil Gorsuch an apology (JONATHAN TURLEY, 06/25/19, The Hill)

Gorsuch has been fascinating to watch over the last two years. He has departed repeatedly from the right of the Supreme Court to do what he considers to be the right thing. He remains a conservative justice but, like his predecessor Antonin Scalia, he has shown a sense of his own "true north" judicial compass. In doing so, he has often made both the left and right of the Supreme Court seem shallow and predictable in their rigidity.

Consider the decision last week on double jeopardy in Terance Gamble versus United States. At issue was the ability of prosecutors to try and potentially sentence individuals for the same criminal conduct in state and federal courts. Some of us have argued that the "dual sovereignty" doctrine had effectively gutted the constitutional guarantee against double jeopardy. Six justices lined up behind Justice Samuel Alito to dismiss such concerns. The dissent by Gorsuch said, "A free society does not allow its government to try the same individual for the same crime until it is happy with the result. Unfortunately, the court endorses a colossal exception to this ancient rule against double jeopardy."

Gorsuch joined Justice Ruth Bader Ginsburg in dissenting. He also broke from the conservative wing in upholding Native American rights. Indeed, in the last term of Justice Anthony Kennedy, who was lionized by liberals upon retirement as a principled swing voter, Gorsuch voted with liberal justices on important decisions on surveillance and sentencing. He also joined in key decisions supporting free speech against the government, including the opinion written by Justice Elena Kagan striking down a statute allowing the government to deny trademark protection to names deemed as "immoral" or "scandalous" by the government. Notably, the partial dissenters to this major victory for free speech were Chief Justice John Roberts, Justice Stephen Breyer, and Justice Sonia Sotomayor.

Posted by at June 25, 2019 4:51 PM