Gorsuch proves to be powerful conservative force on high court
© Greg Nash

Neil Gorsuch became a Supreme Court justice under a constitutional cloud. Elected by a deeply divisive president who had lost the popular vote by a wide margin, his seat was only vacant because Senate Republicans had refused for over a year even to hold hearings on President Obama’s moderate nominee, Merrick Garland. Given those unprecedented circumstances, Gorsuch arguably has an institutional responsibility to be a restrained justice, seeking consensus positions and adhering to mainstream jurisprudential traditions.

But three months into what is likely to be many decades on the court, there is little sign of such restraint. Indeed, Justice Gorsuch has already staked out positions in several areas that are more extreme than some of his conservative colleagues on the court.

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For example, Chief Justice Roberts, a more institutionalist conservative, wrote an opinion for the Supreme Court last week that struck down a state policy providing grants to nonprofit organizations while excluding religious organizations. Importantly, Roberts ruled on narrow grounds. According to Roberts, if the state provides a benefit to non-religious charitable organizations, it must also provide that benefit to religious organizations or it is discriminating against religion.

 

This opinion is controversial enough. But at least Roberts included a footnote limiting the opinion’s holding to cases where the state funding at issue would be used only for non-religious purposes (here, the resurfacing of playgrounds). Thus, in proper incrementalist fashion, the court refused to opine on a hypothetical future case where the state money would be used by the school to further explicitly religious ends.

Not so, Justice Gorsuch. Joined by Justice Clarence Thomas, he would have gone even further, presumably requiring religious organizations to be included in any benefit the government provides even if the funding would be used to advance explicitly sectarian religious purposes. Whether one agrees or disagrees with Justice Gorsuch’s logic, it is clear he is not pursuing a restrained case-by-case approach here.

Similarly, Justice Gorsuch appears to be taking a maximalist reading of the Second Amendment’s “right to bear arms” language. In Peruta v. California, seven members of the Supreme Court declined to review a Ninth Circuit decision upholding a California statute that banned carrying concealed firearms in public absent a showing of good cause. Justices Thomas and Gorsuch would have granted the petition for certiorari. Moreover, Thomas’ opinion, which Gorsuch joined, leaves little doubt where they come down on the merits of the case.

The opinion concludes that the Framers “reserved to all Americans the right to bear arms for self-defense,” adding that they “do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.” Such hyperbolic language suggests a political choice rather than a judicious balancing of the scope of the Second Amendment with legitimate law enforcement imperatives.

Next, consider the Supreme Court’s recent decision concerning the Trump administration’s executive order banning travel from six predominantly Muslim nations. The court, in ruling on the lower court’s temporary stay of the executive order pending a full hearing in the fall, attempted to balance the equities involved. Six justices, again including Chief Justice Roberts, determined that the order should not be applied at this preliminary stage against “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”

For example, those with family connections or those admitted to U.S. universities can still come to the country pending a final ruling. But as in the other cases, such a cautious approach was not acceptable to Justice Gorsuch. Joining Justice Thomas’ opinion, along with Justice Samuel Alito, he would have allowed the executive order to go into effect in toto, and their concurring opinion strongly signals that these three justices would ultimately uphold the travel ban as a valid exercise of executive branch power. Thus, any hope that Justice Gorsuch might help provide a necessary judicial check on the president seems misplaced, at least with regard to immigration matters.

Finally, it is striking how often, even in his first few months, Justice Gorsuch has been willing to dissent or offer his own views, even in one case, Hicks v. United States, going so far as to write a separate concurrence disagreeing with Chief Justice Roberts’ dissent from a summary order of the court.

Justice Gorsuch, of course, has only been on the Supreme Court a short time and has thus far participated in only one cycle of cases. But unlike Merrick Garland, President Obama’s very moderate appointee, Justice Gorsuch thus far seems disinclined to seek consensus or to pursue a moderate and restrained jurisprudential agenda. And although Justice Gorsuch clerked for Justice Anthony Kennedy, his views so far already suggest that he is not speaking with the same kind of moderate voice as Kennedy, indicating that he is likely to exert a strong conservative pull on the Supreme Court for many years to come.

Paul Schiff Berman is the Walter S. Cox Professor of Law at George Washington University.


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