If confirmed by the United States Senate, Judge Neil M. Gorsuch would fill the SCOTUS vacancy left by Antonin Scalia. During his 30 years on the Court, Justice Scalia moved the law dramatically favoring criminal defendants in several areas. One example was Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.Ed. 2d 177 (2004) which held that live witness testimony was constitutionally required in criminal trials for all “testimonial” out-of-court statements. Another was Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) which decided that police needed a search warrant to point a thermal-imaging camera at the side of a house to see if “hot spots” might indicate indoor grow lights. Scalia also delivered Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) holding that every defendant had the right to insist the government prove to a jury all the facts legally essential to punishment in federal prosecutions. He further equipped the defense with United States v. Jones, _ U.S._, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) which held the police needed a warrant to place a GPS tracker on the bottom of suspect vehicles. Conversely, Scalia provided some unwelcomed gratuities to the criminally accused. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)(pretext stops legal provided probable cause existed for any traffic offense) and Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006)(exclusionary rule only applies where its deterrence benefits outweigh its substantial social costs) were standout examples. But this article is about Neil Gorsuch. How might criminal defendants fare with Gorsuch on the Court? Admittedly, we can fashion only educated guesses. Even so, by examining some of his 10th Circuit Court writings and public remarks, we may get a line on issues important to him.

Gorsuch was willing to construe mens rea narrowly, even when it did not favor the prosecution, in United States v. Games-Perez, 695 F.3d 1104 (10th Cir. 2012). There the defendant had been charged with possessing a firearm, after being convicted of a felony, in violation of 18 U.S.C. sec. 922(g)(1). Under 10th Circuit precedent the government need only prove the accused knowingly possessed a firearm – not that he also knew he was a convicted felon. See United States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996)(knowledge required for a sec. 922(g) conviction is only that the instrument possessed was a firearm). After the 10th Circuit denied Games-Perez’ petition for rehearing en banc, Judge Gorsuch asserted in his dissent that the federal statute was unambiguous and clearly required the accused to knowingly possess a firearm and to knowingly be a convicted felon. Gorsuch brutally criticized the way the mens rea element had been interpreted in the case, adding: “People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime.” Games-Perez, 695 F.3d at 1116-17 (Gorsuch, J., dissenting).

Judge Gorsuch made his concern with over-criminalization known during a November 15, 2013 Barbara K. Olson Memorial Lecture at the Federalist Society’s National Lawyers Convention in Washington, DC. During his remarks, Gorsuch observed:

[T]oday we have about 5,000 federal criminal statutes on the books, most of them added in the last few decades, and the spigot keeps pouring, with literally hundreds of new statutory crimes inked every single year. Neither does that begin to count the thousands of additional regulatory crimes buried in the federal register. There are so many crimes cowled in the numbing fine print of those pages that scholars have given up counting and are now debating their number . . . Whether because of public choice problems or otherwise there appears to be a ratchet, relentlessly clicking away, always in the direction of more, never fewer, federal criminal laws. Some reply that the growing number of federal crimes isn’t out of proportion to our population and its growth. Others suggest that the proliferation of federal criminal laws can be mitigated by allowing the mistake of law defense to be more widely asserted. But isn’t there a troubled irony lurking here in any event? Without written laws, we lack fair notice of the rules we as citizens have to obey. But with too many written laws, don’t we invite a new kind of fair notice problem? And what happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”1

In A.M. ex rel. F.M. v. Holmes, 14-2066 (10th Cir. 2016) Gorsuch’s dissent revealed a humorous and gentle wit. That case involved a New Mexico seventh grader arrested by school police for disrupting the education process and suspended from school for generating several “fake burps.” The boy’s mother sued school officials (and the police officer) claiming her son had been subject to an unlawful arrest and excessive force. The 10th Circuit upheld the district court’s decision in support of the officials. Gorsuch, the lone dissenter, insightfully expounded:

If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded  . . . Often enough the law can be “a ass — a idiot,” [citation omitted]and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands — and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass (sic) as they do. I respectfully dissent.

Holmes, at 95-98 (Gorsuch, J., dissenting).

In contrast, Judge Gorsuch demonstrated he may overvalue proceduralism relative to a defendant’s substantive rights. For instance, in Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) he wrote for the majority denying habeas corpus relief. This was Prost’s second habeas petition. He asserted his guilty plea and conviction should be overturned based on a new interpretation of the statute under which he was convicted. See United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). In an opinion balancing the competing considerations of fairness and judicial administration, Gorsuch wrote that Prost’s challenge should be denied since the petitioner had failed to pursue a statutory interpretation argument in the trial court, on appeal, or in his initial collateral challenge to his conviction. Though some argued the decision overvalued proceduralism at the expense of substantive rights, the opinion was well written and clearly reasoned.

Neil Gorsuch is a great admirer of Justice Antonin Scalia. In a speech to Case Western Reserve University School of Law shortly after Scalia’s death, he praised Scalia for his unyielding textualism by saying: “Judges should instead strive, if humanly and so imperfectly, to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”3  If confirmed, Neil Gorsuch will have about 30 years to forge his own judicial identity. Most likely, he will not be another Antonin Scalia on criminal law. But that’s ok since only Scalia could be another Scalia. Rather, from what we know, Gorsuch appears concerned with the plight of the ordinary man and woman. He is balanced, witty, and possesses an enjoyable sense of humor. The man seems to have common sense and he’s got the typical pedigree of a Supreme Court Justice with degrees from Columbia, Harvard, and Oxford. His writing is typically clear and precise. But trying to predict a Justice Neil Gorsuch is a difficult task, at best a guess, as he will have years to mold his judicial legacy. Gorsuch will certainly be no Scalia. But that’s ok since what we really want is Neil Gorsuch to be himself.


1. Gorsuch, N. M., Hon. (2017, February 8). 13th Annual Barbara K. Olson Memorial Lecture. Lecture presented at 2013 National Lawyers Convention in Mayflower Hotel, Washington, DC. Retrieved from http://www.fed-soc.org/multimedia/detail/13th-annual-barbara-k-olson-memorial-lecture-event-audiovideo

2. Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838)

3. Gorsuch, N.M., Hon. (2017, February 9). 2016 Sumner Carnary Memorial Lecture: Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. Res. L. Rev. 905, 906 (2016). Retrieved from http://scholarlycommons.law.case.edu/caselrev/vol66/iss4/3/


(“Off the Back” featured in the “Voice For The Defense” March 2017)

Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.

“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.

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