Trump picks Scalia 2.0

This is not to say that all of Gorsuch’s views match Scalia’s. Scalia had a strong majoritarian streak, meaning he’d often give politically accountable officials latitude to operate, whereas Gorsuch’s record suggests he’s more comfortable with judges’ second-guessing agencies and legislatures. Consider two examples. In administrative law, Scalia was a major proponent of the Chevron doctrine, under which courts defer to agencies’ interpretations of the statutes that those agencies implement. Gorsuch has called for the end of Chevron deference, which would wrest significant control over agency behavior away from those agencies and vest it in the courts.

And under the First Amendment, Scalia took a relatively narrow view of the right of free religious exercise, maintaining that the Constitution blocks laws that are intended to interfere with religious practice, but does not exempt religious people from complying with laws passed for other legitimate reasons. So, for example, a church couldn’t claim a religious exemption to a state ban on alcohol enacted as a public-health measure. Gorsuch, once again more ready to second-guess politically accountable lawmakers, seems inclined to a more expansive view of what laws “freedom of religion” frees you from.

Though Scalia remains an icon of conservative jurisprudence, it’s Gorsuch whose views are more in step with today’s conservative legal zeitgeist. During the three decades Scalia sat on the Supreme Court, conservative legal thought increasingly deemphasized majoritarianism and deference to elected officials, gradually giving greater weight to regulatory skepticism and the robust construction of certain individual rights. Think, for example, of how the prevailing reading of the Second Amendment changed. Chief Justice Roberts and Justice Alito—the current generation—both support the idea that the Second Amendment confers an individual right that supersedes democratically enacted legislation. Their Republican-appointed predecessors, Chief Justice Rehnquist and Justice Sandra Day O’Connor, would have been more inclined to favor the right of the majority to decide whether and how to regulate firearms. (Scalia himself came around on this change by the end of his career.)