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Judge Gorsuch gets a thumbs up from the liberals? Every dog has his day?

Not a fan of the recent Trump appointees, but he made the right call on this one.

A Liberal Judicial Awakening?

Justice Gorsuch gets new respect on the separation of powers.

By The Editorial Board, WSJ

March 29, 2023 6:36 pm ET

Are liberals gaining new respect for the conservative judicial project to rehabilitate the separation of powers? See the amusing headline Tuesday from Vox: “Heartbreaking: The worst Supreme Court justice you know just made a great point.”

The story praises a dissent by Justice Neil Gorsuch that criticizes a court-ordered prosecution of progressive martyr Steven Donziger. Readers may recall our editorials detailing how Mr. Donziger orchestrated a legal shakedown of Chevron over phony environmental crimes in Ecuador.

Chevron fought back against a $9.5 billion Ecuadorian judgment in U.S. court and won. Federal Judge Lewis Kaplan in 2014 excoriated Mr. Donziger for judicial bribery, coercion, money-laundering and witness tampering, among other misconduct. Chevron won a constructive trust on all assets Mr. Donziger received from the Ecuador judgment.

But Mr. Donziger defied court orders to enforce the trust, so the court referred him to the U.S. Attorney to prosecute for criminal contempt. Federal prosecutors declined to do so. The court then employed its own special prosecutor and held a bench trial.

Mr. Donziger was convicted and sentenced to six months in prison. A divided Second Circuit Court of Appeals panel affirmed Mr. Donziger’s conviction, but Judge Steven Menashi issued a powerful dissent. Mr. Donziger appealed to the Supreme Court, which this week declined to hear the case.

Justice Gorsuch writes in a dissent joined by Justice Brett Kavanaugh that the Court should have intervened, explaining that “however much the district court may have thought Mr. Donziger warranted punishment, the prosecution in this case broke a basic constitutional promise essential to our liberty.” He means the Constitution’s separation of powers.

“The Constitution gives courts the power to ‘serve as a neutral adjudicator in a criminal case,’ not ‘the power to prosecute crimes,’” he writes, citing Justice Antonin Scalia. He adds that “the ‘decision of a prosecutor . . . not to indict’ is one that belongs squarely” to the executive branch.

The district court, Justice Gorsuch explains, assumed “the ‘dual position as accuser and decisionmaker’—a combination that “violat[es the] due process’ rights of the accused.” Both court-appointed special prosecutor and the Justice Department defended the power of courts to employ special prosecutors, but their arguments are unconvincing.

“Who really thinks that the President may choose law clerks for my colleagues, that we can pick White House staff for him, or that either he or we are entitled to select aides for the Speaker of the House?” the Justice muses. He didn’t persuade his colleagues to hear the case, but his advice to lower courts to carefully consider Judge Menashi’s opinion might prevent similar violations in the future.

The liberal praise for Justice Gorsuch is welcome, though his logic in this case is entirely consistent with the separation-of-powers rulings by the conservative majority that progressives have so often slammed.

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