So why did Gorsuch just vote with the four liberal justices in a 5-4 decision?

The man just doesn't like the government. At all.

CREDIT: Chip Somodevilla/Getty Images
CREDIT: Chip Somodevilla/Getty Images

The Supreme Court handed down a 5-4 decision on Monday holding that a federal law imposing stricter sentences on some criminal defendants who use firearms is so vague as to be unconstitutional. Trump appointee Neil Gorsuch wrote the majority opinion, joined by all four of his liberal colleagues — thus Gorsuch’s decision to cross over is what made this result possible.

The case is United States v. Davis.

On the surface, Gorsuch’s vote seems surprising. The court’s youngest member is a hardliner who is second only to Justice Clarence Thomas as the most conservative member of the Supreme Court. Indeed, in one case handed down last year, Gorsuch wrote a solo dissent that took such a radical position that not even Thomas joined him.

But Gorsuch’s vote in Davis is entirely consistent with his record up to this point. What sets Gorsuch aside from at least some of his conservative colleagues is that he tends to paint in wide brushstrokes. Gorsuch has a broadly anti-government philosophy, and he is particularly interested in dismantling the power of federal agencies to regulate. Most of the time, that broad philosophy will lead him to strike down progressive reforms. But, as Davis shows, there are occasional cases where Gorsuch’s approach to the law produces small victories for liberals.


The statute at issue in Davis imposes longer sentences on criminal defendants who use a firearm in a crime that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” As Gorsuch explains in his opinion, this law runs afoul of a longstanding rule that vague criminal statutes are unconstitutional.

Among other things, what on Earth does it mean that a statute “by its nature” is likely to result in physical force? And how are juries supposed to make this determination? This task is especially difficult because the statute applies solely to crimes involving firearms — a tool that exists for the sole purpose of using “physical force against the person or property of another” — yet it applies to only some gun crimes and not others.

As Gorsuch explains in a portion of the opinion shooting down the Justice Department’s attempt to defend this law,

The government says, for example, that “selling counterfeit handbags” while carrying a gun wouldn’t be a crime of violence under its approach. But why not? Because the counterfeit handbag trade is so inherently peaceful that there’s no substantial risk of a violent confrontation with dissatisfied customers, territorial competitors, or dogged police officers? And how are jurors supposed to determine that? The defendant presumably knew the risks of his trade, and he chose to arm himself.

It’s worth noting, however, that Gorsuch’s opinion often seems to blur the line between the uncontroversial proposition that courts should treat vague criminal laws with suspicion, and the much more radical proposition that any ambiguous law is constitutionally dubious.


In the criminal context, legislatures have a special obligation to write laws clearly for a variety of reasons. When the state exercises its awesome power to detain and punish individuals — potentially with imprisonment or even death — individuals have a right to know what the law says and how to conform their behavior to it.

Civil statutes, by contrast, typically do not invoke the state’s monopoly on the legitimate use of force, so it is often acceptable for the executive or the judiciary to clarify a vague law rather than tossing it out altogether. Often, Congress writes laws that impose ambiguous obligations on individuals, then delegates to federal agencies the task of clarifying the specifics of those obligations.

Among other things, this approach allows agencies to update which technology polluters must use to reduce emissions as green tech improves. It also allows agencies to update certain labor laws as economic realities change. The idea is that Congress can set a broad policy, but delegate to agencies the task of updating the specific rules that implement that policy as the facts on the ground change.

Gorsuch hates the fact that agencies have this power. Indeed, just last week, he handed down a deeply radical opinion suggesting that the Supreme Court will soon drastically curtail agencies’ ability to regulate. Among other things, Gorsuch’s opinion in Gundy v. United States also warns against vague laws — “any challenge to a legislative delegation can be reframed as a vagueness complaint: A statute that does not contain ‘sufficiently definite and precise’ standards ‘to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed at once presents a delegation problem and provides impermissibly vague guidance to affected citizens.”

Gorsuch’s Gundy opinion, in other words, blurs the line between the heightened safeguards against vague criminal laws, and the more permissive rules applied to civil laws. And if he succeeds in erasing these lines completely, entire agencies — such as the Environmental Protection Agency — will soon be virtually impotent.

This blurring of the lines weaves itself through Gorsuch’s opinion in Davis. Indeed, the very first line of his opinion is “in our constitutional order, a vague law is no law at all,” and Gorsuch later asserts that “when Congress passes a vague law, 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.”


But that’s simply not an accurate statement of the role of the courts. Yes, when Congress passes a vague criminal law it is often the job of the courts to “treat the law as a nullity.” But when Congress enacts a vague non-criminal law, the public’s interest often calls upon the other two branches to clarify the law’s ambiguities — especially when matters such as a clean environment, a safe workplace, a robust health care system, and a right to be free from discrimination are at stake.

Gorsuch, by contrast, seems to prefer turning lawmaking into a game of “GOTCHA!” Congress can try to regulate health insurers, or clean the air, or prohibit gender discrimination. But if Gorsuch’s court finds a provision of the law that isn’t entirely clear, Congress’ entire project could go up in smoke. And if the congressional majority that passed the original law is no longer in place? Well that’s just too bad.

In fairness, other parts of Gorsuch’s Davis opinion correctly state the rule that vague criminal laws must be treated with special scrutiny. But it’s not hard to see why Gorsuch crossed over to vote with his liberal colleagues in this case. Gorsuch’s plans to expand the vagueness doctrine are part-and-parcel with his efforts to dismantle the administrative state. And he’s happy to benefit criminal defendants if it means that he can advance a broader project of disassembling much of the federal government.