Justice Neil Gorsuch Has Already Changed the Supreme Court Forever

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Analysis Law and Policy

Justice Neil Gorsuch Has Already Changed the Supreme Court Forever

Jessica Mason Pieklo

A small-town Fourth of July parade with Associate Supreme Court Justice Neil Gorsuch as the guest of honor sums up everything about Gorsuch's role on the Supreme Court.

Niwot is about as quaint a Colorado town as they come. Situated in an unincorporated part of Boulder County that holds tight to its history as a mining outpost during the Gold Rush and as an enclave of wealth in the region, Niwot is considerably more conservative than its neighboring town of Boulder.

This fact was immediately apparent Tuesday during its Fourth of July parade. Along with a marching band flanked by horseback riders in western gear and the local high school football team handing out water and candy to the kids, Niwot welcomed the parade’s guest of honor, Associate U.S. Supreme Court Justice Neil Gorsuch.

Perched atop a red convertible and flanked by his wife and daughter, Gorsuch worked the parade like a senator, not a sitting Supreme Court justice, employing folksy charm like Colorado’s own Ronnie Reagan. Gorsuch—who had come at the invitation of the Boulder County GOP—shook parade-goers’ hands as if they were constituents’, wishing them a happy Fourth of July and thanking them for coming out to see him. Ignoring the smattering of protesters booing him and calling him an illegitimate judge in a stolen seat, he complimented a young boy on his cowboy hat. He may have even kissed a baby. Meanwhile, his wife Louise waved her U.S. flag with increasing force at the protesters in response to every increase in volume.

Gorsuch’s appearance at the parade came a week after the Supreme Court’s term ended. Gorsuch didn’t take his place on the bench as the replacement to the late Justice Antonin Scalia until April, after a lengthy political fight to get him nominated and confirmed. Even so, that small window of time has illuminated the effect he will have for decades to come. Just like Tuesday appeared to be Gorsuch’s parade, this past term shows that the Supreme Court is really the Gorsuch Court—a trend that will likely continue well into the future.

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Gorsuch’s concurring opinion in Trinity Lutheran Church v. Comer, the case that has further opened a pipeline for direct government spending to some religious institutions, was so conservative not even Justice Samuel Alito—who happily endorsed corporate religious rights in the Hobby Lobby v. Burwell decision—agreed with it. If Gorsuch got his way in Trinity Lutheran, then the First Amendment’s Establishment Clause, which serves as a firewall in the separation of church and state in our democracy, would be rendered irrelevant. Gorsuch’s opinion conflated religious belief and practice, and says it is impossible for the government to sort one from the other; when it tries to do so in a way that is tied to government resources, he said, it discriminates against religious institutions. 

This opinion was not much of a surprise. After all, it was his concurring opinion as a judge on the Tenth Circuit Court of Appeals in Hobby Lobby v. Sebelius that ultimately provided the roadmap for the Roberts Court to extend First Amendment religious protections to some for-profit, secular businesses. 

Jessica Mason Pieklo / Rewire

Neither was it a surprise that Gorsuch would have let the Trump administration’s second Muslim ban take full effect. On the Court’s last full day, it agreed to consider the ban and issued what some legal scholars have described as a split opinion, keeping it in place for foreign nationals who could not prove a “bona fide relationship with a person or entity in the United States” while lifting it for those who could. Gorsuch, however, was in favor of reinstating the ban completely. It is worth noting that before his appointment to the Tenth Circuit, Gorsuch worked in the Department of Justice during the Bush administration. There, one of his specialties was assisting in developing the detention and torture policy that would ultimately lead to the resignation of then-Attorney General Alberto Gonzales and was eventually struck down by the Supreme Court. Given Gorsuch’s past work and his tough stance on detention policy, when the Court hears the full legal challenge next October, it is safe to predict that he will back the Trump administration.

Then there was Pavin v. Smith, a case out of Arkansas that asked the Court to decide if the state violated the U.S. Constitution by denying married female same-sex couples the right to have both parents named on their child’s birth certificate. Instead of agreeing to hear the case next term, a majority of the justices decided it without the customary briefing and oral arguments. They ruled that the Court’s earlier decision in Obergefell v. Hodges, the case that struck down statewide bans on same-sex marriages, specifically names birth and death certificates as one of the “rights, benefits, and responsibilities” that same-sex couples must have access to

Justice Neil Gorsuch disagreed, however, and dissented on the Court’s decision. While he claimed to be dissenting on technical grounds of how the Court ruled on the case—by not taking it up but instead disagreeing so vigorously with the lower court that it flat-out reversed the decision—as Lisa Needham explains here, his opinion was not a technical one. Rather, it was an intellectually dishonest one that illustrated a deep hostility toward LGBTQ rights and equality. 

That hostility toward LGBTQ rights will matter in another high-profile case the Court will hear next term involving a Colorado baker who claims a religious objection to making wedding cakes for same-sex couples. Masterpiece Cakeshop v. Colorado Civil Rights Commission is poised to be a major test of the fight surrounding businesses owners who want to deny services to LGTBQ people based on a religious objection to their sexuality or gender identity. Religious conservatives have filed similar claims across the country on behalf of florists and photographers and have largely lost.

As with most of the Court’s cases involving contentious social issues, Justice Anthony Kennedy will be at the center of its ultimate decision in the case. In the past, Kennedy has generally ruled to expand rights for the LGBTQ community. But as a former Kennedy clerk, Gorsuch could have the influence necessary to sway Kennedy away from LGBTQ rights toward creating a broad legal shield from anti-discrimination laws for business owners based on claims of religious objection.

Rumors are widely circulating that Kennedy is considering retiring during the 2018 term, which, if true, would mean his legacy on LGBTQ rights won’t be all he leaves behind. He will leave his place as the Court’s ideological center to Chief Justice John Roberts, making Roberts the critical swing vote on the Court. It is undeniable that another Trump nominee will be at least as conservative as Gorsuch, who has already proven further to the right than both Scalia and Alito. With that shift, the Court will perhaps become the most conservative in its history, and the appointment of Gorsuch to the bench will be largely responsible.

(Jessica Mason Pieklo / Rewire)

This is what made Gorsuch’s Fourth-of-July glad-handing such a perfect representation of the political role he plays on the current Supreme Court. He represents the most ideological right wing of the Court, but has largely masked those extreme beliefs with charisma that made him appear more reasonable a justice than his opinions prove him to be. And after watching him Tuesday, I have no doubt that Gorsuch is also a skilled politician—able to use that charm to win over members of the public and keep them voting in favor of conservative policies and candidates.

The ultimate test of Gorsuch’s political skill, though, may come in the next Court term. Gorsuch may be able to charm a tiny Colorado town, but will he be able to charm Kennedy before the long-serving justice’s retirement? And if not, how long until the Court shifts his way regardless?