Criminal Justice Divides the 'Conservative' Judiciary.

• Author: Root, Damon

IT WAS A Monday in June 2019, and a sharply divided U.S. Supreme Court had just issued a 5-4 decision in a controversial case. Nothing unusual in that--except for the way the justices lined up to vote. At one end stood Neil Gorsuch, a conservative jurist appointed by President Donald Trump. At the opposite end stood Brett Kavanaugh, a fellow conservative and Trump appointee. What drove them so far apart?

At issue that day in United States v. Davis was a federal statute that, in the Court's words, "threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes. But which other federal crimes?" The law under review called for enhanced sentencing in cases involving so-called crimes of violence, which are felonies "that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

And what exactly does that mean? The experts differed, and that was the source of the problem as far as Gorsuch was concerned. "Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence," he wrote for the majority, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. "In our constitutional order," Gorsuch maintained, "a vague law is no law at all," because it violates the core constitutional requirement that all federal statutes "give ordinary people fair warning about what" is demanded of them. This murky statute failed the test. "When Congress passes a vague law," Gorsuch concluded, "the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again." Kavanaugh did not like the sound of that. "The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality," he lamented in dissent, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Yes, the Supreme Court should "ensure that Congress acts within constitutional limits and abides by the separation of powers," Kavanaugh conceded. "But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers." In Kavanaugh's telling, Gorsuch had just committed the unpardonable sin of judicial activism. The majority opinion took the Court "off the constitutional cliff."

Two days later, Gorsuch butted heads with another Republican appointee in another criminal justice case, this time trading verbal blows with Alito over the proper scope of the Sixth Amendment right to trial by jury. "Only a jury, acting on proof beyond a reasonable doubt, may take a person's liberty," Gorsuch wrote for the majority in United States v. Hammond, in which, once again, he was joined by the Court's four Democratic appointees. "Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt."

Not so fast, Alito shot back in dissent. Gorsuch's opinion "is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications." Not exactly the nicest thing that one conservative judge can say to another.

It might be surprising to hear, but these clashes are not isolated incidents. They are evidence of a growing trend: Today's criminal justice docket is bringing out all sorts of divisions among right-of-center jurists. If you want to understand some of the biggest constitutional battles of our time--from the fight over the Fourth Amendment right to be free from unreasonable searches and seizures to the showdown over qualified immunity for cops--you need to pay heed to what's happening in the fractious world of Republican-appointed federal judges.

'THE CONSTITUTION OF THE FOUNDERS' DESIGN'

CRIMINAL JUSTICE REFORMERS were cautiously optimistic in January 2017 at the news that President Donald Trump had picked Neil Gorsuch to fill a vacancy on the U.S. Supreme Court. Of the 21 names on Trump's SCOTUS shortlist, Gorsuch, who was then a judge on the U.S. Court...