With Donald Trump’s first supreme court nominee confirmed, the real business can begin – with a range of hot-button cases on the way
As the partisan argument rages over the confirmation to the supreme court on Friday of Donald Trump’s nominee, Neil Gorsuch, the stakes of that argument are only now becoming clear.
Democrats had dreamed of a progressive majority on the court and accuse Republicans of “stealing” the seat, for the senate’s 10-month-long refusal to consider the nomination of Merrick Garland, Barack Obama’s final court pick.
The Democratic filibuster that followed – a parliamentary tactic for putting off a distasteful vote – was overcome by a Republican move to change Senate rules. The episode made for the court’s most messily political moment since the 2000 presidential tiebreak.
Now the real business begins. Justice Anthony Kennedy will swear in Gorsuch early next week, the White House said Friday. Immediately thereafter, on 13 April, Gorsuch will sit for the first time with his colleagues and participate in decisions about what cases the court will hear next.
The potential cases touch on some of the most hot-button questions in American life, including who may carry a gun in the street; whether businesses may discriminate against same-sex couples on religious grounds; and whether Republican majorities may impose statewide voting restrictions that disproportionately disenfranchise poor and minority voters.
Later this month, Gorsuch will hear arguments in his first cases as a justice, including one marquee case that experts say could reposition the line between church and state.
Further out, Trump’s first nominee could weigh in on some of the most controversial and legally complex moves of the young administration, including Trump’s attempted bans on Syrian refugees and on visitors from select Muslim-majority countries. Both bans are subject to multiple court challenges now playing out in various districts across the country, with the potential of rising to the high court.
The likely result of Gorsuch’s presence among the justices, close observers widely agree, will be to give the court a conservative tilt, after a year in which an evenly divided court split 4-4 on touchstone issues including voting rights, public labor unions and immigration. The split rulings had the effect of leaving in place lower-court decisions.
When Trump set out to find a nominee to return the court to its full nine members, the imperative, as far as many Republicans saw it, was to come as close as possible to replacing Justice Antonin Scalia, the conservative lion whose death in February 2016 created the vacancy. A corollary need was to avoid an appointment like that of the retired justice David Souter, who often voted with the court’s liberal wing despite having been appointed by George HW Bush, a Republican.
Gorsuch, an appeals court judge based in Colorado, came with impeccable conservative credentials established by thousands of rulings, a book on euthanasia in which he discoursed on life’s intrinsic value and a personal admiration for Scalia, whose death Gorsuch said moved him to tears. Gorsuch publicly praised the late judge’s professed respect for the line separating jurisprudence and legislation, and Gorsuch’s unadorned, direct writing style has been compared to Scalia’s.
“A year ago we lost Justice Scalia, a giant, and today we are one step closer to seeing the preservation of his legacy on the Court,” Leonard Leo, an executive of the conservative Federalist Society who counseled Trump on the Gorsuch pick, said in a statement.
Churches, bakeries and voter IDs
Gorsuch will soon have a chance to make his presence felt. Next Thursday, the supreme court is scheduled to hear arguments in Trinity Lutheran church v Comer, pitting a Missouri church against a state agency that excluded the church from a program providing recycled asphalt. The church argued that its playground, which it wanted to resurface, was open to the public in summer and thus should be eligible for state assistance. Missouri determined that as a religious institution, the church was not eligible for state-funded improvements.
Conservative groups have framed it as a “religious freedom” case, a versatile phrase that has also been applied to demands by religious business owners that they not be required to provide services to people they object to or to provide federally mandated contraception coverage to their employees.
Gorsuch has ruled on the second issue directly, in perhaps his best-known case to date, Hobby Lobby Stores Inc v Sebelius. In that case, owners of the retail outlet sought dispensation from a requirement in Barack Obama’s healthcare law that employers provide insurance coverage for oral contraceptives for employees. Gorsuch sided with the owners in a ruling that cited the Religious Freedom Restoration Act as a “super-statute”. Elsewhere, Gorsuch has ruled sympathetically in cases involving the erection of Ten Commandments monuments in public spaces.
Gorsuch is not eligible to vote on cases in which arguments were held before he was seated. But even before hearing arguments in the Trinity Lutheran case, Gorsuch will have a chance to shape the court’s agenda.
Next Thursday, the court will meet and potentially decide whether to hear arguments in Masterpiece Cakeshop, Ltd v Colorado civil rights commission, in which a Christian baker refused to do business with a gay couple. A lower court ruling noted that the baker “believes that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages”.
Also awaiting a court decision on whether to hear arguments is Peruta v California, which could produce a ruling on whether the second amendment guarantees a right to carry guns outside the home, including in states where open carry is prohibited. The plaintiff in the original case was denied a permit to carry a gun, with the state saying he had not demonstrated a “good cause” required by law to do so. The plaintiff asserted that constitutional guarantees superseded such a cause.
With Gorsuch onboard, the court might also decide whether to hear North Carolina v North Carolina State Conference of the NAACP, in which an outgoing Republican governor challenged a federal court finding that a new state voter ID law had been written to “target African Americans with almost surgical precision”. Last year, a split supreme court left the earlier ruling in place.
While Gorsuch’s views on major issues of public debate including abortion and guns are not known in as much detail, Trump said on the campaign trail that he would pick a nominee who opposed abortion rights and proposed sympathy for gun owners as a litmus test for judges.
Gorsuch appears to fit the bill on both counts. In his book on euthanasia, Gorsuch wrote: “To act intentionally against life is to suggest that its value rests only on its transient instrumental usefulness for other ends … All human beings are intrinsically valuable, and the intentional taking of human life by private persons is always wrong.”