A new tie-breaker has emerged within the U.S. Supreme Court. That Court has been split between four progressive justices and a changing list of five conservative justices. For several years, Justices Ginsberg, Kagan, Breyer and Sotomayor have made up the progressive wing. Chief Justice Roberts has been a tie-breaker with the progressives on a few occasions, most notably in upholding Obamacare. Justice Kennedy has sided with the progressives more often, and recently in support of gay marriage. Justices Alito and Thomas are always with the conservatives. Hence, we have a now growing list who are willing to join the progressives for an ever-changing majority.

Yes, the new justice, Neil Gorsuch, has become the newest tie-breaker with his vote and concurring opinion in Sessions v. Dhimaya, decided on April 17. With his concurrence declaring a portion of the Immigration and Nationality Act void for vagueness by rendering an alien deportable because of conviction of an “aggravated felony” or what is termed a “crime of violence.”

The opinion of the four progressives went to great length to distinguish the argument of the dissents by the Chief Justice and Justice Thomas. Essentially the controlling opinion simply followed the recently decided case of Johnson v. United States, 576 US ___ (2017).

Justice Gorsuch's concurring and deciding opinion was a treatise on “vague laws” and what they mean in our day-to-day lives.

Taking us back to Lord Coke in his treatises from 1797, our newest justice proved he meant what he told the U.S. Senate—that he would go back to English Common Law and to original intent to resolve modern questions that confront the Court. He went back to the original understanding of our Due Process Clause.

He relied upon cases from the early 19th century to support his thesis; we have discovered an intellect standing by his “understanding of our history and early interpretations.”  He adopted a “fair notice standard,” and applied it to the case at hand. His analysis represented a breath of fresh air when compared with his conservative colleagues' dissents.

We may have seen the arrival of an intellect that can help elevate our worn Court, beaten down by partisan bickering.

Michael D. Schottland is a partner with Lomurro Law in Freehold. He is a member of the medical malpractice section of the Civil Litigation and Personal Injury Departments of the firm. He has been designated by the Supreme Court of New Jersey as a Certified Civil Trial Attorney.