The late Justice Scalia often joked that he was “the darling” of the criminal defense bar and the “poster child” for the National Association of Criminal Defense Lawyers. He was right. More than any other Justice on the Supreme Court with him, he ruled for criminal defendants on important cases dealing with the confrontation clause, sentencing issues, the right to a jury, and probable cause to name a few.
When Justice Gorsuch replaced Scalia, many feared that he would not be nearly as friendly to criminal defense issues. But Gorsuch has proved those critics wrong. Like Scalia, Justice Gorsuch may also get his own poster from NACDL. Some examples from this Term:
1. Haymond v. United States. Justice Gorsuch wrote the 5-4 majority opinion, which is joined by the 4 more liberal Justices, in favor of a defendant who was found guilty of possessing child pornography. The question for the Court was whether judges had the power to sentence defendants to additional an additional term of imprisonment without a jury finding beyond a reasonable doubt. Justice Gorsuch said no way: “Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.” There’s lots of other really good language in the opinion, explaining that the right to trial by jury, together with the right to vote, is “‘the heart and lungs, the mainspring and the center wheel’ of our liberties, without which ‘the body must die; the watch must run down; the government must become arbitrary.’” (Quoting letter from Clarendon to W. Pam (Jan. 27, 1766), in 1 papers of John Adams 169 (R. Taylor ed. 1977)). Great stuff.
Justice Gorsuch is far from perfect. He is pro-death penalty. He dissented in Flowers v. Mississippi, the case where the prosecutor illegally struck black jurors. These decisions have led some to rightfully criticize Gorsuch, like the well-respected Leah Litman in this piece. But Litman is wrong to minimize what Gorsuch has done, saying he only “sometime departs” from his conservative colleagues. The truth is that he’s been quite good for the rights of criminal defendants, as was his predecessor Justice Scalia. He doesn’t knee-jerk vote for the government like Justices Alito and Thomas. And as Litman rightfully points out, he even votes for criminal defendants when his more liberal colleagues (like Breyer) do not. Instead of criticizing Gorsuch for not doing the right thing on every single criminal justice issue, we should be optimistic that he will continue to channel Justice Scalia’s independent streak on these issues.