Neil Gorsuch, who was nominated by President Donald Trump Tuesday night to fill the late Justice Antonin Scalia’s seat on the Supreme Court, has earned a reputation for his incisive writing and and textual reading of the Constitution. But his deftly penned decisions and originalist stance are not the only characteristics he shares with Scalia. Gorsuch has also sketched a series of solidly conservative stances on likely hot-button issues should he join the high court, including decisions on religious freedom and the Second Amendment.
Here are some of his most telling decisions from the bench:
Scalia was rarely receptive to petitioners filing for relief from the death penalty, and it seems unlikely that Gorsuch would be any more likely to consider such requests as a justice of the high court.
Gorsuch has joined decisions in the past upholding death sentences, including the case of Scott Eizember, who killed a couple in 2003. Gorsuch’s textual interpretation of the law also suggests he would consider few justifications for a review of any death row inmate’s sentence.
His possible ascension to the bench would presumably reorient the balance of the court back in favor of the death penalty’s use. After Scalia’s death, the court split evenly 4-4 on whether or not to stay a death sentence for an Alabama inmate. The inmate, Ronald B. Smith, was eventually executed by the state.
Gorsuch has supported the Second Amendment in his case readings — though some of the opinions in which he has asserted that support only tangentially involve gun rights.
In the 2012 case United States v. Games-Perez, which involved a question over how to read a federal law that bars felons from possessing guns, Gorsuch argued that the felon needed to know not only that he possessed the gun but also that he was a felon for the criminal law to apply. His dissent included a defense of the Second Amendment — “gun possession is often lawful and sometimes even protected as a matter of constitutional right” — but also applied a narrow reading of the law, even when it gave prosecutors a higher bar to clear.
Otherwise, the felon convicted of possessing a firearm “might very well be wrongfully imprisoned,” he wrote.
Gorsuch has prioritized religious freedom consistently on the bench. In a 2013 case involving a family-owned business that objected to the contraceptive mandate in the Affordable Care Act, Gorsuch wrote that the mandate was unconstitutional, “requiring them to lend what their religion teaches to be an impermissible degree of assistance to the commission of what their religion teaches to be a moral wrong.”
An issue Gorsuch has not yet ruled on is abortion, though he wrote a book on the legality of assisted suicide that suggested his worldview would not accept the practice. “To act intentionally against life is to suggest that its value rests only on its transient instrumental usefulness for other ends,” he wrote at the time.
In 1973, the Supreme Court ruled in Roe v. Wade that people have a constitutional right to abortion — though Trump has declared he will nominate a justice opposed to the practice.
Power of federal agencies
Though Scalia and Gorsuch share several positions, Gorsuch’s judicial history suggests they diverge on at least one issue: how much power federal agencies should have in applying and interpreting the law through regulations.
In such cases, judicial decisions usually apply the Chevron doctrine, which suggests that when a statute is unclear, courts should defer to federal agencies’ interpretations of the law. Scalia was more likely to abide by the doctrine, but Gorsuch spoke out against it in his concurring opinion in Gutierrez-Brizuela v. Lynch last year.
The doctrine is “difficult to square with the Constitution of the framers’ design,” he wrote in connection to the case, adding that “under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them.”
Washington correspondent Michael Doyle contributed to this report.