The Jurisprudence of Justice Neil Gorsuch




Craighead, Michael Burke

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Justice Neil Gorsuch is a self-proclaimed originalist and textualist. In many respects, however, Justice Gorsuch represents a new strand of textualism that does not fit nicely within traditional conservative or liberal labels. One has to look no further than Bostock v. Clayton County to see how Justice Gorsuch’s textualism is distinct from other well-known textualists. An examination of Justice Gorsuch’s own understanding of textualism, his approach to government structure and powers, his decisions involving rights and liberties, and his method of statutory interpretation reveals an emphasis on due process that is distinguishable from other Justices on the Court. Justice Gorsuch is unique in how he ties due process to the separation of powers and fair notice. The centrality of the separation of powers to due process is evident in Justice Gorsuch’s emphasis on judicial independence, his fight against administrative deference, and his reinvigoration of the nondelegation doctrine. Likewise, he insists on fair notice through his aversion to judicial balancing tests, his requirement that Congress be explicit when it acts, and his rejection of judicial policymaking. These two concepts work together in Justice Gorsuch’s jurisprudence to ensure that individual rights are protected and liberty is capable of being exercised. Ultimately, his jurisprudence understands the rule of law as anchored in a robust conception of due process through fair notice and the separation of powers, which makes him unique among the current members of the Court.