In the wake of Judge Neil Gorsuch’s nomination to the Supreme Court by President Donald Trump on Tuesday, legal experts and journalists have rushed to analyse his previous opinions and deduce what type of justice he will be, should the Senate confirm him.
Gorsuch’s previous opinions and statements have offered up a few key insights — namely his similarities to his predecessor Justice Antonin Scalia, and his witty, conversational writing style.
But Gorsuch is also a clear adherent to textualism — a manner of interpreting laws in accordance with their plain text, rather than by assuming or inferring the intent of lawmakers, or the potential consequences of the laws’ implementation.
But perhaps nowhere is Gorsuch’s commitment to unearthing the meaning of a law as “the words on the paper say” more noticeable than in one 2015 decision in which he used “plain old grade school grammar” to determine the legal penalties imposed on defendants accused of using a firearm “during and in relation to any crime of violence or drug trafficking crime.”
Gorsuch was ruling on a case in which prosecutors were attempting to charge a defendant, Philbert Rentz, with two violations for allegedly firing a gun once. Prosecutors argued that since a single shot hit and injured one person, then struck and killed another, two separate “crimes of violence” had been committed and should be penalised accordingly.
Gorsuch disagreed, saying prosecutors must look to the statute’s verbs for their accurate meaning, which he argued only supported one count of using a firearm during a crime of violence.
“It’s not unreasonable to think that Congress used the English language according to its conventions,” he wrote, before proceeding to explain each verb in the statute and how the adverbial prepositional phrases modify them.
“The statute doesn’t seek to make illegal all such acts, only the narrower subset the phrases specify,” he wrote.
To demonstrate, Gorsuch first cited the “Chicago Manual of Style” and “Garner’s Modern American Usage” on adverbial prepositional phrases, and then he diagrammed the sentence out:
“Visualized this way it’s hard to see how the total number of charges might ever exceed the number of uses, carriers, or possessions,” Gorsuch wrote.
“Just as you can’t throw more touchdowns during the fourth quarter than the total number of times you have thrown a touchdown, you cannot use a firearm during and in relation to crimes of violence more than the total number of times you have used a firearm.”
This is an opinion column. The thoughts expressed are those of the author.
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