Gorsuch tilts Supreme Court back to the right
Neil Gorsuch was sworn in this week as the 113th justice of the Supreme Court, restoring a 5-4 conservative majority after a yearlong partisan fight over the seat. A former Colorado appeals court judge, Gorsuch, 49, was administered the oath by Justice Anthony Kennedy—for whom he once clerked—in the White House Rose Garden, as President Trump and the seven other justices looked on. Calling high court appointments “the most important thing” a president does, Trump said, “I got it done in the first 100 days. You think that’s easy?” Gorsuch’s ascent was hardly that. After conservative Justice Antonin Scalia died last year, Senate Republicans refused to act on President Obama’s nominee, Judge Merrick Garland. When Trump tapped Gorsuch, furious Democrats retaliated with an unprecedented Senate filibuster, prompting Majority Leader Mitch McConnell (R-Ky.) to invoke the “nuclear option,” eliminating filibusters of Supreme Court nominees and letting them be confirmed with a simple majority. The final vote for Gorsuch was 54-45, the narrowest since Clarence Thomas’ 25 years ago. The new justice assumed his robes with humility, remarking, “The seat I inherit today is that of a very, very great man.”
Gorsuch could make an immediate impact. Next week, the court begins its final round of oral arguments for the term, and will hear a religious freedom case out of Missouri concerning the use of state funds by churches. In coming months, Gorsuch could hear a case addressing whether businesses can refuse to provide wedding services to same-sex couples, as well as one on Trump’s travel ban.
What the editorials said
Gorsuch joins a court that is “increasingly and more openly partisan,” said The New York Times. Justices now routinely split along party lines “on politically fraught decisions” like the Citizens United campaign-finance ruling and the Hobby Lobby case on mandated birth control coverage. Chief Justice John Roberts has said that close, ideologically divided rulings “undermine public trust” in the court’s impartiality. Will Gorsuch’s arrival lead to more “5-4 decisions that serve narrow conservative interests?”
“Don’t start the party just yet, conservatives,” said the Amarillo, Texas, Globe-News. Remember that it was the supposedly right-leaning Roberts who “cast the deciding 5-4 vote unleashing Obamacare on the country in 2012.” After asserting in confirmation hearings that justices, like umpires, “don’t make the rules; they apply them,” Roberts then decided that the Constitution “includes a mandate for health-care coverage.” For all his conservative bona fides, Gorsuch could turn out be another Roberts.
What the columnists said
Conservatives will soon learn where Gorsuch stands, said Hans von Spakovsky in FoxNews.com. The court will hear Trinity Lutheran Church of Columbia v. Pauley next week, a case of “blatant religious discrimination” in which Missouri denied a state grant to a churchrun preschool that wanted to resurface its playground, claiming the payment would violate the separation of church and state. Gorsuch’s decision in favor of Hobby Lobby as a lower court judge suggests he’s committed to religious freedom as a constitutional right and will “prevent an injustice from occurring” in this case.
“Gorsuch’s views on ‘natural law’ could shape his opinions,” said J. Paul Kelleher in Vox.com. While often described as an “originalist” who adheres strictly to the intent of the constitutional framers, Gorsuch also believes that nature has a purpose that can be discerned, and that judges can use a “moral filter” to decide whether a statute is right or wrong. In a 2006 book, Gorsuch used natural law to condemn physician-assisted suicide. In future, he could apply this moralistic prism to settled laws—including Roe v. Wade.
Although Gorsuch has only just been sworn in, Republicans are now “plotting to fill the next vacancy,” said Richard Hasen in the Los Angeles Times. Trump has already made overtures to Kennedy— possibly through Kennedy’s son, Justin, who knows Donald Jr.—“to get him to feel comfortable with retirement.” And the White House is surely keeping tabs on the 84-year-old Ruth Bader Ginsburg. Without the filibuster, Democrats will be powerless to stop nominees “even more conservative than Gorsuch”; eventually, Roberts could be the closest thing to a swing vote. To keep the court from veering far right, Democrats have “to pray for the current justices’ good health”—then take back the presidency and the Senate. ■