The addition of appellate Judge Neil Gorsuch to the Supreme Court would empower conservatives to accomplish top priorities that have been stymied, for nearly a year, by the absence of a ninth justice.
If he’s confirmed by the Republican-controlled Senate, Gorsuch’s track record indicates that while he would not dramatically shift the court’s balance, he would bolster the conservative wing, which upholds the death penalty, expands the Second Amendment, restrains regulators, lifts campaign finance restrictions and protects religious practice.
“His judicial track record while serving on the 10th Circuit for over a decade is a testament to his conservative philosophy, particularly in the areas of excessive federal overreach and the protection of religious liberty,” said Texas Attorney General Ken Paxton.
Gorsuch’s presence would also break a 4-4 deadlock that has kept the court from definitively deciding key controversies.
Challenges to mandatory union fees, for instance, are likely to come roaring back. A longtime target for business interests, the mandatory fees paid by nonmembers of the California Teachers Association and other unions appeared ready to fall last year until Justice Antonin Scalia’s death froze the court in a tie.
While Gorsuch has apparently not dealt directly with the issue before, members of the conservative Federalist Society, who helped guide President Donald Trump on his Supreme Court pick, have been among the strongest opponents of the mandatory fees, which they consider a form of compelled speech.
“We need a jurist who is open-minded and not ideological, whose respect for the Constitution leads her or him to safeguard the rights of all our people, not just the privileged and powerful,” said Lee Saunders, president of the American Federation of State, County and Municipal Employees.
The eight justices last year explicitly punted on another tough challenge, the latest to the Affordable Care Act’s contraception-coverage mandate, kicking it back to the lower court two months after hearing oral arguments. It, too, will return to a reinforced high court, where the challenge will likely get a more sympathetic reception.
Gorsuch sided with religious objectors to the mandate in a 2013 case and again in 2015.
In theory, Gorsuch could join the court in time to hear the final oral arguments of the term, in April. Senate Democrats, though, remember how Republicans blocked for nearly 10 months any consideration of President Barack Obama’s nominee, Judge Merrick Garland. Some lawmakers have already threatened to filibuster any nomination, and fast action is, at the least, unlikely
Once he does join the court, if he prevails, Gorsuch by his own account will abide by Scalia’s strict approach toward interpreting constitutional and statutory text, as he told a Case Western Reserve University Law School audience last year that “the traditional account of the judicial role Justice Scalia defended will endure.”
Replacing a conservative with a conservative will not affect the balance on the court.
Professor Charles Geyh, Indiana University’s Maurer School of Law
Stylistically, Gorsuch may not match Scalia’s well-known verbal zest during oral argument or his combativeness in written opinions.
“Justice Scalia had a verve for the battle,” Stanford Law School professor Michael McConnell, who served with Gorsuch on the 10th U.S. Circuit Court of Appeals, said in an interview, “whereas Gorsuch is much more willing to find common ground.”
With his Columbia, Oxford and Harvard Law School degrees, though, Gorsuch should have an immediate rapport with his fellow Ivy Leaguers on the court, three of whom, as he did, once clerked for Supreme Court justices. McConnell described Gorsuch as “always collegial” and someone who “works well with people” across the board.
How Gorsuch may change during what may be several decades on the court is one of the great unknowns, however. Some conservatives remain embittered over how former Justice David Souter, a GOP appointee, turned toward the left. Some past justices have shifted right, while some simply began to assert themselves more.
In her initial 2010 term, for instance, Justice Elena Kagan asked an average of 10.6 questions per oral argument. This was fewer than any of her colleagues save Justice Clarence Thomas, who always stays silent. Last term, a more aggressive Kagan was asking an average of 14.5 questions, according to statistics compiled by SCOTUSblog.
Tied for nearly a year with four Republican and four Democratic appointees, the high court has steered clear of some deadlock-prone controversies, while hinting that they will be revisited.
With Gorsuch’s addition, for instance, the court seems likely to eventually take up a Texas voter-identification case. Even as the court on Jan. 23 declined for the time being to consider the Texas law, conservative Chief Justice John Roberts Jr. stressed that “the issues will be better suited for review later.”
Gorsuch was not part of a 10th Circuit panel last year that struck down a strict voter-identification law imposed in Kansas.
In many of the run-of-the-mill cases that often dominate the court’s docket, Gorsuch very possibly would bring little change.
“Replacing a conservative with a conservative will not affect the balance on the court,” noted Charles Geyh, a professor at Indiana University’s Maurer School of Law. “The next appointment is likely to be more important in that regard.”
During the term that ended last June, moreover, the court decided 79 percent of its cases by solid margins of 9-0, 8-1 or 7-2. Only 5 percent of the decisions were by the narrowest possible 5-4 margin, though the number would have been higher had Scalia lived to break some ties. The previous term, justices had decided 26 percent of their cases by 5-4.
On some of the hottest social issues,Gorsuch will effectively maintain the court’s status quo. He has, for instance, generally denied appeals from death-row inmates, but that is entirely consistent with a high court where Justice Stephen Breyer was alone in a 2016 dissent in a case involving a Florida inmate to call for the court to reconsider capital punishment.
Abortion, while it often dominates the political discussion, rarely makes an appearance at the Supreme Court, and it could be a long time before Gorsuch confronts the issue after the barrage of question he’ll face about it at the Senate Judiciary Committee. A 5-3 decision last year striking down a Texas law restricting abortion clinics was the court’s first major abortion decision since 2007.
Gorsuch does not appear to have a definitive record on abortion, though last year he wanted the full 10th Circuit to reconsider a decision blocking Utah Gov. Gary Herbert from cutting off Planned Parenthood funding.
He has also given an unusual amount of thought to related life-and-death morality questions, as the author of a book published by Princeton University Press on the legalization of euthanasia and assisted suicide.
“Gorsuch builds a nuanced, novel, and powerful moral and legal argument against legalization, one based on a principle that, surprisingly, has largely been overlooked in the debate, the idea that human life is intrinsically valuable and that intentional killing is always wrong,” the publisher summed up.