Sophie J. Hart & Dennis M. Martin, Essay: Judge Gorsuch and the Fourth Amendment, 69 Stan. L. Rev. Online 132 (March 2017):
Before Justice Scalia, pragmatic balancing tests dominated the Court’s Fourth Amendment doctrine. But by 2008, Justice Scalia had succeeded in reframing the Court’s analysis. In an opinion joined by seven other Justices, he wrote: “In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve.”
Like Justice Scalia, Judge Gorsuch has advocated an originalist interpretation of the Fourth Amendment. But he has not applied that originalist approach to all Fourth Amendment questions. This Essay traces Judge Gorsuch’s jurisprudence in two areas of Fourth Amendment doctrine. Part I considers his decisions regarding searches of homes and personal property, where he has adopted and extended Justice Scalia’s common law approach. Part II contrasts that approach with Judge Gorsuch’s decisions regarding Terry stops, where he has proven even more willing than many of his peers to employ the sort of totality of the circumstances inquiry that Justice Scalia so eschewed. In each Part, we also consider how Judge Gorsuch’s particular brand of originalism might impact Fourth Amendment issues looming on the Court’s horizon.
This is a good essay to read.
I wonder how many members of the Senate have read the essay or will read it – or have read this article on Gorusch and immigration cases. Of course, there is no litmus test for a court nominee – at least, there’s not supposed to be any litmus test, but does anyone really think Trump would nominate someone if that jurist had a history that was consistently unsympathetic to what this president is trying to do?