University of Michigan Law School Scholarship Repository
Abstract
Jan Crawford has reported that President Donald Trump is strongly considering appointing Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to the U.S. Supreme Court. I do not know Judge Gorsuch, but I do know his opinion in Prost v. Anderson, which is a rather wonky case on a somewhat technical area of federal habeas law. Prost provides an interesting insight into Judge Gorsuch’s jurisprudence. The case concerns an issue on which the courts of appeals disagree, so it provides a nice glimpse into how Judge Gorsuch might address matters that are reasonably susceptible to different resolution, as many of the Supreme Court’s cases are. Prost illustrates how Judge Gorsuch will balance competing considerations of fairness and administrability in criminal law. While there is much to like about Prost—it is well written, clearly reasoned, and adopts an administrable rule—the opinion also raises some concerns. The opinion overvalues proceduralism relative to substantive rights in a way that will have the effect of eroding litigants’ access to courts
