Gorsuch will bring a fifth vote in any deadlocked cases
Still little known about his jurisprudence on a whole swath of issues
Could be confirmed in time for a major religious liberty case being heard next week
When Neil Gorsuch takes his seat on the Supreme Court he will be warmly received by his eight new colleagues who have toiled away on a short staffed bench for more than a year.
There are plenty of cases that have piled up ready for his review and his may be the deciding vote.
As he faces hot button issues, court watchers and his colleagues will scour his opinions and comments from the bench for any clues to his jurisprudence.
What will he bring to the court? Most critically, a fifth vote in any deadlocked cases. He’s an eloquent writer, a quick study and no shrinking violet during oral arguments. On some issues, like religious liberty, he has an extensive paper trail of judicial opinions from his decade on the 10th Circuit Court of Appeals. He joined one opinion, for instance, ruling in favor of a closely held business that objected to the so-called contraceptive mandate in Obamacare.
“This isn’t the case, say, of a wily businessman seeking to use an insincere claim of faith to as cover to avid a financially burdensome regulation,” he wrote.
In other areas, he might even be farther to the right than Antonin Scalia, the man he will replace. Gorsuch has questioned, for instance, whether when a law is ambiguous courts must defer to the interpretation adopted by the federal agency charged with enforcing it. He’s written a book on assisted suicide where he opposes giving critically ill patients drugs to bring about death. Conservatives hope his views might put him in their camp when reviewing restrictions on abortion.
But there are a whole swath of issues where little is known of his jurisprudence. Indeed, he has never ruled squarely on Roe v. Wade, the Second Amendment or same sex marriage. He hasn’t done a lot on voting rights issues or the death penalty. But the White House and conservative groups take comfort that he shares the same judicial philosophy of Scalia. Like Scalia, Gorsuch believes the Constitution should be interpreted based on its original public meaning. Conservatives believe that could solidify his position on the right wing of the bench.
Professor Lee Epstein, of the Washington University in St. Louis, has studied Gorsuch and places him in the “conservative category,” roughly in the same ideological range as Justice Samuel Alito and Scalia.
“We predict he’ll be a reliable conservative voting to limit gay rights, uphold restrictions on abortion and invalidate affirmative action programs,” she said.
“More generally, if we use Alito as our guide, we expect Gorsuch to reach conservative decisions in almost two-thirds of all cases and over 70% of non-unanimous decisions — meaning he will be significantly more conservative than Justice Kennedy (55% conservative in all cases and 59% in divided decisions.)”
What awaits Gorsuch
The 49-year-old justice will get no break between a grueling confirmation process and the last few months of a Supreme Court term.
As things stand now there are two more weeks scheduled for oral arguments.
One significant religious liberty case – an issue that closely divides the justices — will be heard next week.
The case was granted shortly before Scalia’s death, but the justices held off on setting it for argument, perhaps cognizant that it might need a tie breaking vote.
It involves a day care facility run by the Trinity Lutheran Church in Missouri. The church sought a state grant given to facilities that use recycled tires as a surface for playgrounds to improve safety.
Missouri awarded the grants to other non-profits, but said that the daycare facility was ineligible because the Missouri Constitution bars funding to churches. Lawyers for the church say the state’s action violates the Constitution. It is set for argument on April 19.
There are several cases heard early in the term that have not yet been decided — that could be a sign that the judges are deadlocked. Although the rule is not set in stone, justices who haven’t sat for oral arguments normally don’t vote on the outcome of a case. Instead, if the court is equally divided, Chief Justice John Roberts might order the cases re-argued.
One case that seemed close during oral argument concerns a 15-year-old Mexican national who was shot to death in 2010 by a US Border Patrol agent standing on American soil. The teenager was cowering behind a pillar just across the border in Mexico.
The family of Sergio Hernandez is seeking to sue the border official for their son’s death. They say the agent violated Hernandez’s constitutional rights.
The violent shooting was caught on cellphone video and sparked outrage because of the fact that Hernandez was unarmed. The case comes with the backdrop of tension between the Trump administration and Mexico over the issue of building a wall between the two countries.
Another case, Jennings v. Rodriguez, grapples with whether it is unlawful to subject thousands of immigrants fighting deportation to long-term detention without individualized bond hearings. The case is brought by a class of immigrants who seek hearings to prove that they are neither a flight risk nor a danger to society.
And Sessions v. Morales deals with an immigration statute that applies citizenship requirements for a child born of a US citizen father more stringently than a US citizen mother when they are unwed and their child is born abroad.
Gorsuch’s work won’t be confined just oral arguments however. He will join his colleagues in the ornate conference room for a regular conference to discuss whether to take up new cases for next term.
Before them now is a another religious liberty case concerning a Colorado cake artist who refused to make a cake for a same-sex couple. The controversy arose in July 2012 when David Mullins and Charlie Craig visited Masterpiece Casekeshop to order a cake for their upcoming wedding reception. The shop is owned by Jack Phillips who has been designing cakes for 22 years. He told the couple he couldn’t create a cake honoring same-sex marriage because doing so would conflict with his sincerely held religious beliefs. The couple field a complaint with the Colorado Civil Rights Division which found that Phillips had violated the Colorado Anti-Discrimination Act. Lower courts ruled in favor of the couple.
There is also a simmering dispute concerning a voting rights law in North Carolina.
The court could also take up a case that asks whether the Second Amendment allows citizens to carry concealed handguns outside the home for self defense.
Conservatives are frustrated that the court hasn’t taken up a major Second Amendment case since Scalia’s landmark decision in District of Columbia v. Heller holding that the Second Amendment protects an individual’s right to hown a gun in the house for self defense.
Other cases are still at the appellate court level, but could make their way to the court in the coming weeks and months.
In May, federal appeals courts will hear challenges to Trump’s revised travel ban. There’s always the possibility that the Court might be asked to rule on an emergency motion coming from those cases.