Neil Gorsuch’s 2017 nomination to the US Supreme Court was contentious and narrowly approved by the Senate, with the vote largely falling along party lines. But in a new book review, Womble Bond Dickinson attorney Chris Mammen describes Justice Gorsuch as a thoughtful, serious legal scholar and jurist who holds clearly defined beliefs about the law, “but is more nuanced than the caricatured tropes that accompany each new 5-4 Supreme Court ruling.”
Mammen reviews Justice Gorsuch’s new book, A Republic, If You Can Keep It for Inside Sources. His review also was referenced in the SCOTUSblog .
In the review, Mammen notes that the book highlights Justice Gorsuch’s long-held belief in originalism and textualism. “As Gorsuch states, ‘an originalist and a textualist will study dictionary definitions, rules of grammar, and the historical context, all to determine what the law meant to the people when their representatives adopted it,’” Mammen writes.
“This approach, contend its proponents, provides the greatest restriction on judges’ ability to select different interpretations that may be arbitrary, politically motivated or unsupported. In this regard, Justice Gorsuch’s strong textualist approach — particularly when combined with his impassioned argument for strict separation of powers — may be distinguished from both forms of legal positivism that merely defer to the exercise of power, and also from natural law theory, which seeks to interpret law in accordance with natural (sometimes, theological) order.”
While Gorsuch does not claim that this approach is perfect, he believes it provides an objective path to finding the most reasonable solution. Drawing on his doctoral work at Oxford, Mammen offers his comments on the potential limits of the originalist-textualist approach.
Mammen also notes that while Justice Gorsuch frequently has been a swing vote during his time on the Supreme Court, he has sided with the Court’s conservative bloc only about half of the time when he has joined the majority in 5-4 decisions. “This voting record, together with his comments on law, society and reform, bespeaks an independent spirit true to his roots in the mountain West,” Mammen writes.
Mammen also shares his personal connection to Justice Gorsuch, as the two were classmates at Oxford in the mid-1990s.
Chris Mammen, D. Phil. is a veteran intellectual property litigator and thought leader in San Francisco and Silicon Valley. He has been litigating patents and technology cases since the start of the first dot.com boom in the late 1990s. With the growth of artificial intelligence, he has emerged as a leading commentator on both AI in intellectual property law, and ethical issues surrounding using AI in law practice.