Supreme Court enters new era, raising conservative hopes

The ascension of Neil Gorsuch to the Supreme Court is expected to usher in a new conservative majority that could become part of President Trump's legacy.

Gorsuch, who was confirmed by the Senate on Friday, is widely expected to shift the ideological balance of the court to the right, with his views seen as mostly in line with the man he is replacing: the late Justice Antonin Scalia.

But some court watchers say Gorsuch may be even more conservative than Scalia, his mentor and a fellow adherent to the originalist view of the Constitution.

“I think it’s interesting he’s cast as either a follower of Scalia or a more temperate version of Scalia, but in fact it seems that he may be quite to the right of Scalia in certain areas,” said Caroline Fredrickson, president of the left-leaning American Constitution Society for Law and Policy.

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Like Scalia, Gorsuch was part of a majority ruling in favor of Hobby Lobby stores. His 10th Circuit Court of Appeals ruled that the Affordable Care Act could not compel certain companies to provide health coverage for contraception if it violated their religious beliefs. 

The Supreme Court upheld that ruling in 2014.

While Gorsuch ducked questions at his confirmation hearings about his views on equal protections for LGBTQ Americans, liberal groups expect him to give heavy weight to religious freedom in decisions about civil rights.

“I can see efforts to make it easier for people to opt out of providing services,” Fredrickson said.

“I can see letting the florist, the caterer, the dress maker have no requirement to provide gays and lesbians with any services ... There are a lot of different ways, even if a right is not taken away in name, it’s gone because it’s impossible to exercise.”   

Conservatives say liberal groups are reading Gorsuch’s record out of context, noting he has never actually ruled on any LGBTQ rights case.

Carrie Severino, chief counsel for the conservative Judicial Crisis Network that lobbied hard for Gorsuch’s confirmation, said he has a record of following the law without consideration for politics.

Yet conservatives do agree with liberals than Gorsuch is more conservative than Scalia in at least one area of case law, known as the Chevron deference.

The administrative law principle, which says courts should defer to an agency’s interpretation of vague laws unless they are unreasonable, was established by the Supreme Court in the 1984 landmark decision Chevron U.S.A. v. Natural Resources Defense Council Inc.  

It’s a court precedent even Scalia upheld. 

“Broad delegation to the Executive is the hallmark of the modem administrative state; agency rulemaking powers are the rule rather than, as they once were, the exception; and as the sheer number of modern departments and agencies suggests, we are awash in agency ‘expertise,’ ” Scalia said while speaking at Duke Law School in 1989.

But in a concurring opinion in a case on the 10th Circuit last year, Gorsuch argued that Chevron should be reconsidered. 

“If this goliath of modern administrative law were to fall? Surely Congress could and would continue to pass statutes for executive agencies to enforce," he wrote. 

"And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is.”

Liberal groups say that line of thinking could put Obama-era public health and safety protections at risk, as many of them are already being challenged in the courts.

“He will, unlike Scalia, restrict the ability of agencies to protect our health and safety …  and second-guess agency experts,” said Nan Aron, president of the Alliance for Justice. 

“His decisions favor corporations and special interests at the expense of consumers and workers, and we believe he will continue this trend on the Supreme Court.” 

But John Malcolm, director of The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, says Gorsuch isn’t favoring one administration or another in making the argument against Chevron deference.

“His approach of less deference to agencies would apply during a Democratic administration and Republican administration,” he said. “It’s not based on whether he likes the executive branch rulings or not.”

Malcolm said Gorsuch is arguing for the separation of powers by saying it’s a judge’s role to give the best interpretation to ambiguous laws, rather than deferring to agency interpretations.

“Gorsuch would show no more deference to Trump administration agencies than he would Obama administration agencies,” he said.  

Other legal experts cautioned that it’s hard to guess how Gorsuch will rule on any given issue. 

“You can’t really know even if you read all his circuit opinions how it will work out once he’s on the court,” said Carl Tobias, a professor of law at the University of Richmond School of Law. 

Tobias argues that the types of cases heard by the 10th Circuit vary from those heard by the Supreme Court, which often handles broader constitutional questions.

“And I think that to some extent justices change when they are on the court for good or bad and it just depends on the issue,” he said. 

However he rules, Gorsuch’s impact on the court will be felt for years to come. He is 49 and will have a lifetime appointment.

"If he turns out to be conservative, it solidifies the conservative bloc in a way that wouldn’t have happened if you had someone older," Tobias said. 

Gorsuch will be sworn in as a justice on Monday.