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Neil Gorsuch could be the most conservative justice on the Supreme Court

- March 20, 2017

Today begins Senate confirmation hearings for Neil Gorsuch, Donald Trump’s nominee to fill Antonin Scalia’s seat on the Supreme Court. Gorsuch’s pick pleased many conservatives, but a big question for Senators and Court watchers is: how conservative will Gorsuch be?

Our analysis suggests that, if confirmed, Gorsuch might be the most conservative justice on the Supreme Court.

To determine this, we looked at the opinions decided by the Tenth Circuit Court of Appeals since 2006, when Gorsuch joined that court. Based on Gorsuch’s opinions, we can estimate where on the liberal-conservative spectrum he falls (also called his “ideal point estimate”). We use a standard approach that has been used to estimate policy preferences of presidents, members of Congress, and key actors in the federal bureaucracy.

To make an apples-to-apples comparison between Gorsuch and the current Supreme Court justices, we examined cases where the justices reviewed decisions coming from the Tenth Circuit. Thus, we have opinions from both Gorsuch and the current justices on the same cases, and we can identify whether Gorsuch is more or less conservative than any Supreme Court justice. Our results are described in more detail here.

We find that Gorsuch may be more conservative than Justice Clarence Thomas has been. This is different than some other estimates, which place Gorsuch about halfway between Justice Samuel Alito and Thomas. The difference is that these estimates rely on the ideological preferences of the home state senators involved with confirming Gorsuch to the Tenth Circuit.

But Gorsuch’s actual voting behavior suggests that he is to the right of both Alito and Thomas, and by a substantial margin. The magnitude of the gap between Gorsuch and Thomas is roughly the same as the gap between Justice Sotomayor and Justice Kennedy during the same time period. In fact, our results suggest that Gorsuch and Justice Scalia would be as far apart as Justices Breyer and Chief Justice Roberts.

So, yes, Gorsuch is likely to be conservative, but more conservative than Scalia — and more conservative than Thomas has been.

To be sure, the kinds of appeals the Tenth Circuit was forced to hear are different than the kinds of cases the Supreme Court chooses to hear. It is possible that this mandatory docket makes Gorsuch look more conservative than he is. On the other hand, it is also possible that a discretionary docket would provide greater opportunity for Gorsuch to undo liberal doctrine. Conservatives will hope for the latter; liberals for the former.

Moreover, although Gorsuch may wind up being more conservative than Scalia, his overall judicial philosophy is quite in line with Scalia’s. He writes opinions that are as clear and engaging as Scalia’s opinions, but with fewer attacks. He is also a textualist as Scalia was. He interprets legal provisions according to the meaning they had when adopted. He appears to shun balancing tests and legislative history.

The one meaningful difference between Gorsuch and Scalia, as far as we and others can tell at this point, is that he will be less likely to defer to administrative agencies than was Scalia. Taken as a whole, though, Gorsuch’s approach is very much like Scalia’s.

Assuming these data are correct, the implication for Gorsuch’s confirmation is what most observers expect: a contentious process, with most Senate Democrats in opposition and Senate Republicans in favor. If Gorsuch is confirmed, conservatives — including no doubt millions of American voters — will celebrate. As was their right, they wanted a conservative justice. And it appears Trump obliged.

Ryan Black is a political science professor at Michigan State University.

Ryan Owens is a political science professor at the University of Wisconsin at Madison.

The original version of this post ran on February 15, 2017.