Asher Steinberg has been studying one of Judge Gorsuch’s most important opinions. Here’s his summary, on Notice & Comment:
I have taken a great deal of time with these writings, and I find them disturbing, just as much for what they say about Judge Gorsuch the legal craftsman and judge as for what they say about Judge Gorsuch the administrative lawyer. They exhibit a remarkable carelessness about the basic facts and legal background of a case, and a willingness to substitute armchair theorizing for rudimentary empirical inquiry. The opinions’ treatment of precedent is less than serious at best and at times genuinely shocking; Supreme Court precedent is (among other things) openly “tamed,” turned on its head, caricatured, and frivolously distinguished, while circuit precedent is overruled sub silentio in one opinion and pronounced overruled in the next. Doctrines Judge Gorsuch doesn’t like are pared down with no evident regard for whether what’s left after the paring is workable, coherent, or even legal. And the argument against Chevron amounts to either a naïve denial of statutory indeterminacy, a proposal to cure the problem of unconstitutional delegations to agencies (that current doctrine doesn’t recognize as a problem) by pretending the delegations don’t exist and transferring the discretion they vest in agencies to courts, or both.
Careless? Not a good verb to be applicable to a SCOTUS Justice.
