By Pat Nolan, Director, ACUF Center for Criminal Justice Reform 

Originally posted on

One of the enjoyable aspects of researching the record of judicial nominees is finding relatively unnoticed opinions that are delightful gems among otherwise tedious legal reading.

So it is that I was delighted to read the droll dissent that Judge Gorsuch wrote in A.M. vs. Holmes. Here is Judge Gorsuch’s statement of the issue in the case:

If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office?

Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.

This opinion is remarkable for its brevity and clarity. It is readable and can be understood by the average person. It is refreshing to have a judge express himself so clearly. And while the judge’s point is an important one, he manages to inject wry humor into the opinion. He is politely asking his colleagues, “Are you really going to make a criminal out of a kid who disrupts a class by belching? You’ve got to be joking.”

In his dissent, Judge Gorsuch homes in on an important issue at stake in this case. Should school officials call police to handle disruptive students? Increasingly schools are turning to police to deal with routine discipline problems that used to be handled by school staff. Irritating behavior now frequently results in a police officer being summoned, and the disruptive student arrested. Not sent to detention, or made to run laps, or write the words of the school fight song 100 times. But handcuffed, shoved in the backseat of a patrol car, fingerprinted, booked, and tossed into a jail cell.

An arrest can have grave consequences for a youngster. It may disqualify them from college scholarships, and perhaps even prevent them from enrolling in college. An arrest record will make finding a job more difficult, and the emotional trauma of being arrested and jailed will have lasting psychological impact. And the chances of the student being assaulted in jail are high. All this for disruptive and annoying behavior in the classroom. This is just one example of the increasing tendency to criminalize virtually every part of our lives.

It took the majority of the court 94 pages to justify making this 13-year-old a criminal. It took Judge Gorsuch a mere 3½ pages to bring us back to reality by distinguishing between behavior that is inherently bad and harmful from actions that are merely irritating. He concluded his dissent with a quote from Oliver Twist, “Often enough the law can be ‘a ass — a idiot’…It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass [sic] as (the other judges) do. I respectfully dissent.”

Bravo, Judge Gorsuch!