But Gorsuch! TRUMP'S FIRST SUPREME COURT PICK IS BETTER ON CIVIL LIBERTIES THAN HIS CRITICS WANT TO ADMIT.

• Author: Sullum, Jacob

WHEN DONALD TRUMP nominated Neil Gorsuch to the Supreme Court in January 2017, Demand Progress warned that the judge was "an extremist" who would "rubber stamp Trump's assaults on Americans' freedoms." People for the American Way likewise described Gorsuch as "an ideological warrior who puts his own right-wing politics above the Constitution, the law and the rights of everyday people." During Gorsuch's confirmation hearings that March, Sen. Mazie Hirono (D-Hawaii) worried that "you rarely seem to find in favor of the little guy."

Even before Gorsuch heard his first case as a Supreme Court justice in April 2017, it was clear from his decade on the U.S. Court of Appeals for the 10th Circuit that such attacks were unwarranted. Far from screwing over "the little guy" at every opportunity, he had shown unusual sensitivity to the predicament of vulnerable people confronted by implacable and frequently inscrutable agents of the state. "Among the folks that Trump had on his short list," observes the Ohio State University law professor Douglas Berman, "Gorsuch seemed more defendant-friendly than most of the others," and "that's carried over to the Supreme Court."

During Gorsuch's first two terms on the Court, he took positions that should be applauded by people who care about criminal justice and civil liberties, including the critics who were so quick to condemn him as a heartless authoritarian. Except for capital cases, where "he doesn't seem to have much of an affinity for the defense position," Berman says, Gorsuch is "distinctly concerned about safeguarding defendants' procedural rights." While judges across the spectrum have long been willing to compromise civil liberties in cases involving unpopular defendants such as drug dealers and sex offenders, Berman notes, "Gorsuch has, to his credit, said, 'No, no. The rules are the rules.'" His work shows that an honest attempt to apply the "original public understanding" of constitutional provisions frequently yields libertarian results, limiting government power and protecting individual rights.

That's not to say Gorsuch himself is a libertarian. In his 2006 book on assisted suicide, he explicitly rejected the "libertarian principle" that would require legalization of that practice. The same principle, he argued, would also require the government to allow "any act of consensual homicide," including "sadomasochist killings, mass suicide pacts... duels, and the sale of one's life (not to mention the use of now illicit drugs, prostitution, or the sale of one's organs)." If the government lets people kill themselves, in other words, it might also have to let them smoke pot.

Nor do Gorsuch's originalist methods always lead him to conclusions that libertarians like. Last June, for instance, the Supreme Court overturned a Tennessee law that required people to live in the state for at least two years before applying for a license to sell liquor. Seven members of the Court deemed that protectionist policy inconsistent with the Commerce Clause, which was supposed to prevent interstate trade barriers. Gorsuch--joined by Justice Clarence Thomas, another originalist--dissented, arguing that such residence requirements have a long history in the United States and exemplify the sort of state policies that were protected by federal statute before Prohibition and by the 21st Amendment afterward.

On the whole, however, "Gorsuch appears to be on his way to being the most libertarian justice we've had on the Court in some time," says Case Western Reserve University law professor and Volokh Conspiracy blogger Jonathan Adler. And on several issues that progressives in particular care about, such as privacy, due process, and police abuse, Gorsuch has been notably less deferential than the other conservative justices, with whom he has repeatedly parted company. "He's someone who takes express constitutional guarantees very seriously," Adler says, "even where they might conflict with what we would expect a conservative to want."

For the president's opponents, "But Gorsuch!" is a gibe aimed at conservatives who cite the nomination as vindication of their support for Trump. But for libertarians, there is an element of truth to that line of defense: While Gorsuch may not be the saving grace of the Trump administration, he is far more inclined to question authority and defend "the rights of everyday people" than the man who picked him.

'WHAT'S LEFT OF THE FOURTH AMENDMENT?'

GORSUCH'S COMMITMENT TO enforcing the Fourth Amendment's ban on "unreasonable searches and seizures" is one of the clearest ways in which his record belies progressives' claims that he tends to approve "assaults on Americans' freedoms."

On the 10th Circuit, Gorsuch wrote the majority opinion in the 2016 case United States v. Ackerman, which held that the National Center for Missing and Exploited Children conducted a search within the meaning of the Fourth Amendment, which...