A low-profile 2012 case, U.S. v. Games-Perez, illustrates how Gorsuch has applied these views. At issue was a federal law that authorizes prison terms for anyone who “knowingly violates” a ban on the possession of firearms by a convicted felon. A precedent in the Tenth Circuit held that a defendant who knew that he had a firearm could be sentenced under that provision even if he did not know that he was a convicted felon. (In the case Gorsuch was deciding, Miguel Games-Perez had previously taken a plea deal that the presiding judge had misdescribed as an alternative to being “convicted of a felony.”)
Gorsuch participated in a panel of three of the circuit’s judges that affirmed the prison sentence. Gorsuch concurred in the result because he felt bound by precedent. At the same time, he made a powerful argument that the circuit’s precedent could not square with the text of the law. And when the case later came before the circuit, he urged it to reconsider that precedent.
The case brought together several strands of Gorsuch’s thinking. It demonstrated his willingness, shared with Scalia, to overturn a criminal conviction when a proper reading of the law required it. He paid close attention to the text and grammar of the law while expressing skepticism about letting legislative history guide his decision. “Hidden intentions never trump expressed ones,” he wrote, adding an aside about “the difficulties of trying to say anything definitive about the intent of 535 legislators and the executive.” (Scalia was a foe of the judicial consideration of legislative intent for similar reasons.) And it showed, as well, his understanding that a judge must follow his duty even when it leads somewhere he dislikes. “He cared a lot about what the precedents are,” says the former clerk. “He was not interested in bending them or the usual tricks judges can use for getting around them if they don’t like them.”
Also like Scalia, Judge Gorsuch is skeptical of the “dormant commerce clause”: the longstanding legal doctrine that the Constitution’s grant of power over interstate commerce to Congress implies limits on the states’ power over it even when Congress has not spelled out those limits. And he shares Scalia’s preference for clear legal rules over vague “standards” that judges can manipulate to reach desired conclusions.