Gor­such is the new Scalia, just as Trump promised

Los Angeles Times - - OP-ED - By Richard L. Hasen Richard L. Hasen, a professor of law and po­lit­i­cal sci­ence at the UC Irvine School of Law, is work­ing on a book about Scalia’s legacy.

What­ever else comes of the Don­ald J. Trump pres­i­dency, al­ready he has per­fectly ful­filled one cam­paign pledge in a way that will af­fect the en­tire United States for a gen­er­a­tion or more: putting an­other An­tonin Scalia on the Supreme Court. The early signs from Jus­tice Neil M. Gor­such, who joined the court in April, show that he will hew to the late Jus­tice Scalia’s brand of ju­rispru­dence, both in his con­ser­vatism and his bold­ness.

Usu­ally it takes a few years to get the full sense of a new jus­tice. The job pro­vides awe­some power, and new jus­tices of­ten are re­luc­tant to is­sue stark opin­ions or stake out strong po­si­tions early on. Chief Jus­tice John G. Roberts Jr. and Jus­tice Sa­muel A. Al­ito Jr., for ex­am­ple, were at first cau­tious on cam­paign fi­nance and vot­ing rights is­sues. Only later did they sign on to block­buster de­ci­sions like 2010’s Ci­ti­zens United cam­paign fi­nance case (al­low­ing cor­po­ra­tions to spend un­lim­ited sums in elec­tions) or 2013’s Shelby County vot­ing case (in ef­fect killing off a key Vot­ing Rights Act pro­vi­sion).

Not so with Gor­such. In a flurry of orders and opin­ions is­sued Mon­day, Gor­such went his own way. The ma­jor­ity af­firmed the right of same­sex par­ents to have both their names ap­pear on birth cer­tifi­cates, but Gor­such dis­sented. The ma­jor­ity chose not to hear a chal­lenge to Cal­i­for­nia’s public carry gun law, thus leav­ing it in place, but Gor­such dis­sented. Gor­such also wrote sep­a­rately in the Trin­ity Lutheran case, on whether a parochial school may take gov­ern­ment money for play­ground safety equip­ment. The court found in fa­vor of the school, but Gor­such went even fur­ther to the right in en­dors­ing the gov­ern­ment’s abil­ity to aid reli­gious or­ga­ni­za­tions. This fol­lowed his dis­sent with Jus­tice Clarence Thomas a few weeks ago over the court’s fail­ure to con­sider over­turn­ing the “soft money ban” in the McCainFein­gold cam­paign fi­nance law.

Gor­such also joined with con­ser­va­tives Al­ito and Thomas to par­tially dis­sent from the Supreme Court’s Mon­day or­der in the travel ban case. The court split the baby, rul­ing that un­til the court hears the case this fall, only part of the ban may go into ef­fect. (The gov­ern­ment can­not en­force the travel ban against for­eign in­di­vid­u­als from six pre­dom­i­nantly Mus­lim na­tions who have fam­ily, work or univer­sity con­nec­tions to peo­ple or en­ti­ties in the United States.) The dis­senters would have al­lowed the Trump ad­min­is­tra­tion to en­force the en­tire ban un­til the court could fully con­sider the case.

Set­ting aside his emerg­ing al­liance with Thomas and Al­ito, Gor­such has al­ready staked out some po­si­tions just for him­self. In Mon­day’s Hicks vs. United States de­ci­sion, Gor­such found him­self dis­agree­ing with Thomas and Roberts and sid­ing with a crim­i­nal de­fen­dant. “A plain le­gal er­ror in­fects this judg­ment — a man was wrongly sen­tenced to 20 years in prison un­der a de­funct statute,” Gor­such wrote. He voted in fa­vor of grant­ing re­lief while Thomas and Roberts voted against. In this too he re­sem­bles Scalia, who is­sued some sur­pris­ing de­ci­sions fa­vor­ing crim­i­nal de­fen­dants. (Both sides cited an ear­lier opin­ion by Scalia on when it is ap­pro­pri­ate to send the case back to the lower court to fix the er­ror.)

Gor­such also seems to share Scalia’s un­yield­ing con­fi­dence that it is pos­si­ble to ap­ply gram­mat­i­cal rules of statu­tory in­ter­pre­ta­tion to reach the “right” re­sult in even thorny cases con­stru­ing fed­eral law. In­deed, he treated his first ma­jor­ity opin­ion about who counts as a “debt col­lec­tor” un­der fed­eral law — in Hen­son vs. San­tander Con­sumer U.S.A. — as essen­tially a gram­mar les­son ap­ply­ing Scalian “tex­tu­al­ism.” And writ­ing for him­self, Al­ito and Thomas last week in Perry vs. Merit Sys­tems Pro­tec­tion Board, he snark­ily de­clared, “If a statute needs re­pair, there’s a con­sti­tu­tion­ally pre­scribed way to do it. It’s called leg­is­la­tion.”

The next term of the Supreme Court is shap­ing up to be a ma­jor one, in­clud­ing not only the travel ban case, but also the so-called cake shop case on whether a reli­gious busi­ness owner can deny ser­vices to same-sex cou­ples. In due time, the court will no doubt also tackle more cases in­volv­ing abor­tion, vot­ing rights, gun rights and cam­paign fi­nance.

Al­though the pre­cise con­tours of Gor­such’s opin­ions are un­cer­tain, and he could sur­prise in crim­i­nal cases, there’s lit­tle doubt that, like Scalia, con­ser­va­tives will be able to count on his vote.

Usu­ally it takes a few years to get the full sense of a new jus­tice. Not so with Gor­such.

Justin Sul­li­van Getty Images

JUS­TICE Neil M. Gor­such has hewed to the late Jus­tice An­tonin Scalia’s brand of ju­rispru­dence.

Manuel Balce Ceneta As­so­ci­ated Press

JUS­TICE Scalia is­sued some sur­pris­ing de­ci­sions fa­vor­ing crim­i­nal de­fen­dants.

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