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Neil Gorsuch is No Civil Libertarian

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More about this as we summarize the term, but glad to see some pushback from Leah Litman against people cherrypicking a few pro-defendant Gorsuch votes to make his record seem much better than it is:

Let’s start with Garza v. Idaho, where the Supreme Court held 6–3 that criminal defense lawyers who, contrary to their client’s express directive, do not appeal their client’s conviction are presumed to have prejudiced their client’s Sixth Amendment rights to effective counsel. Three justices disagreed. One of them was Gorsuch. But Gorsuch did not stop there. He chose to join the portion of Justice Clarence Thomas’ dissent that questioned whether criminal defendants even have a constitutional right to appointed counsel if they cannot afford a lawyer. The decisions holding otherwise, such as Gideon v. Wainwright, are bedrocks of the criminal justice system. My hot take is that a hypothetical Justice Merrick Garland would not have voted to undermine the basis of our indigent defense system.


That was not the only case in which Gorsuch sought to cast aside a significant constitutional protection for criminal defendants. In Bucklew v. Precythe, a case that allowed Missouri to execute a man whose rare medical condition meant that execution would be particularly painful, Gorsuch wrote an opinion that moved the court’s Eighth Amendment jurisprudence in a decidedly less-defendant-friendly direction. Prior Eighth Amendment cases had underscored that the amendment prohibits punishments that are inconsistent with evolving standards of decency. But in Bucklew, Gorsuch made no mention of that evolving decency standard, the basis for the Eighth Amendment’s prohibition on executing children or persons with mental disabilities…

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Bucklew also favorably cited an earlier decision in which Gorsuch had ruled against a criminal defendant—the now infamous case of Dunn v. Ray. In Ray, the Supreme Court lifted a stay on the execution of Dominique Ray. Alabama wanted to—and did—execute Ray, a black, Muslim man, without allowing him an imam in his final moments in the execution chamber. (The prison allowed Christian chaplains into the execution chamber but did not allow Ray an imam.) In a later, related case, Murphy v. Collier, Gorsuch again would have allowed a state to execute a man who was denied a spiritual adviser of his own denomination even when the state offered other death row inmates of other religions—particularly Christianity—such advisers.

Another example was Stokeling v. United States, a decision that expanded the reach of the Armed Career Criminal Act, which subjects certain federal criminal defendants with three or more prior convictions to mandatory minimum terms of 15 years’ imprisonment. There was also Madison v. Alabama, when Gorsuch would have allowed Alabama to execute a man whose mental illness left him with no memory of his crime, and Moore v. Texas, when Gorsuch would have allowed Texas to execute a man with serious adaptive disabilities.

I could go on, but I will list just one more example: Flowers v. Mississippi. In Flowers, a majority of the court ruled that the prosecutor had discriminated on the basis of race while striking jurors from serving on Curtis Flowers’ jury. Over the course of six trials, the same white prosecutor had eliminated 41 of the 43 prospective black jurors. Gorsuch joined Thomas’ dissent, which claimed that Flowers had provided no evidence of racial discrimination at his most recent capital trial.

Honestly, one could just cite the cartoonish racism he wanted to approve in Flowers and drop the mic. Anyway, as with Thomas his radical libtertarianism and contempt for stare decisis make him more likely to be a swing vote in criminal procedure cases than Alito, but he remains far worse on them in general than even Breyer, the most conservative Democrat.

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