Gorsuch is not a carbon copy of Scalia, however. Perhaps the greatest area of difference between Gorsuch and Scalia concerns administrative law, in particular the relationship between the judiciary and federal agencies. While esoteric to some, these differences are of profound importance given the all-encompassing reach of today’s administrative state.
Both jurists acknowledged the vital role of constitutional separation of powers in constraining government power and preserving individual liberty, yet they drew different lessons for judicial review of agency action. Scalia feared an overweening judiciary that would use the power of judicial review to direct regulatory policy and supplant the policy judgments of presidential appointees. As a consequence, he was a strong proponent of the Chevron doctrine, under which courts are required to defer to reasonable agency interpretations of ambiguous federal statutes. Under Chevron, if a regulatory law is not crystal clear, the implementing agency gets to decide what it means.
Scalia defended Chevron against its detractors left and right, seeing a useful constraint on activist courts. Gorsuch, on the other hand, sees in Chevron a potential threat to the fundamental obligation of the judiciary to interpret federal statutes and “say what the law is.”