Gorsuch already pushing Supreme Court to the right
He appears eager to change law, especially on religious matters.
WASHINGTON — When Judge Neil M. Gorsuch went before the Senate in March as President Trump’s first nominee to the Supreme Court, he sought to assure senators he would be independent and above the political fray.
“There is no such thing as a Republican judge or Democratic judge,” he said more than once. “We just have judges.”
But in just his first few weeks on the high court, Justice Gorsuch has shown himself to be a confident conservative activist, arguing for moving the law to the right on religion, gun rights, gay rights and campaign funding.
Most new justices are cautious upon arrival, but Gorsuch wasted no time in staking out a strong position to the right of his colleagues, including Chief Justice John G. Roberts Jr. and his former boss and mentor, Justice Anthony M. Kennedy.
He dissented along with Justice Clarence Thomas when the court rejected a gun-rights challenge to California’s law that strictly regulates who may carry a concealed weapon. “The 2nd Amendment’s core purpose,” they said, shows “the right to bear arms extends to
public carry.”
He filed his own dissent on Monday when the court ruled for two lesbian couples and said they had a right to have both of their names on their child’s birth certificate. Without hearing arguments, the justices struck down part of an Arkansas law that gave this right to oppositesex couples, but not samesex couples. Gorsuch said he did not see “any constitutional problem with a biology based birth registration system.”
But the majority stressed that Arkansas had no such system. Opposite-sex couples whose child is conceived “by way of an anonymous sperm donation” have the husband’s name on the birth certificate, the court said.
The justices, including Kennedy, said they had clearly ruled in 2015 that married same-sex couples deserve fully equal rights. Thomas and Justice Samuel A. Alito, both of whom dissented two years ago, joined Gorsuch’s dissent.
When Trump’s travel ban came before the court this week, Gorsuch dissented from the majority’s middleground approach, which allowed the ban to take effect except for foreign travelers who had a relationship with this country, such as having a close relative or being a student enrolled in a university.
Gorsuch, again with Thomas and Alito, said the entire ban should take effect immediately. “The balance of equities favors the government,” they said.
“I expect conservatives are celebrating,” said Elizabeth Wydra, president of the Constitutional Accountability Center, a progressive legal group, adding that he had “failed his first test” in the travel ban case.
But it comes as no surprise that Gorsuch, 49, is a conservative. He was a Republican appointee to the U.S. appeals court in Denver, and he drew the eye of Federalist Society Executive Vice President Leonard Leo because he is a superb writer and a thoughtful and reliable conservative. Gorsuch was always seen as a fitting successor to the late Justice Antonin Scalia, a conservative hero.
Still, there is always a bit of apprehension when new justices are seated and begin to reveal their opinions on issues they usually avoid discussing during the confirmation process. Conservatives, in particular, have been bitterly disappointed when Republican appointees, such as former Justices David H. Souter and Sandra Day O’Connor, and current Justice Kennedy, turned out to be more moderate in some areas.
But until recently, most conservative justices have been inclined to uphold the laws on the books and stick with the court’s precedents. Gorsuch, however, has shown himself eager to change the laws, particularly in the area of religious liberty and church-state separation.
Throughout American history, the U.S. Constitution and most state constitutions have prohibited the government from giving tax money to churches. But in this week’s ruling involving a church-run preschool center in Missouri, the justices described those traditional funding restrictions as an unconstitutional “discrimination” against the “free exercise” of religion.
Chief Justice Roberts said it is “odious” to disqualify the preschool from receiving a state grant to rubberize its playground simply because it is run by the Lutheran Church. But his opinion took a cautious approach and said in a footnote the court was ruling only on a playground and not other “religious uses of funding.”
Gorsuch wrote a short separate opinion to disavow the footnote and to argue for a much broader view of what is protected by the 1st Amendment’s ban on laws “prohibiting the free exercise” of religion.
“That clause guarantees the free exercise of religion, not just the right to inward belief,” he wrote. “The general principles here do not permit religious discrimination — whether on the playground or anywhere else.”
Advocates of school choice saw the decision as opening the door for public funding of religious schools. On the day after the ruling in the Missouri case, the justices told the Colorado courts to take another look at a case testing whether students in church schools are entitled to tax-funded scholarships if students in other private schools may qualify. Colorado’s high court ruled that such aid to a religious entity violated the state’s constitution, but that conclusion is now in doubt.
Michael Bindas, an attorney for the Institute of Justice in Virginia, said the Supreme Court’s “order sends a strong signal” that states and localities may not “exclude religious options from school choice programs.”
On the last day of their 2016-17 term, the justices also voted to hear a major religious liberties case from Colorado, even though they had turned down similar appeals before Gorsuch’s arrival. At issue is whether to carve out an exception to the state’s civil rights law requiring public businesses to serve all customers without regard to their race, religion or sexual orientation. The court voted to hear a “free exercise” of religion and free speech claim from a baker who cited his Christian beliefs as a reason for refusing to bake a wedding cake for a same-sex couple.
On campaign financing, Gorsuch last month dissented with Thomas when the court affirmed earlier rulings that upheld federal limits on big-money gifts to political parties.
In the Citizens United case in 2010, the justices struck down the limits on “independent” political spending, but they have stood by the restrictions on how much donors can give directly to candidates and parties.
The Republican National Committee has continued to challenge those limits, and Gorsuch said the court should hear the challenge.
‘That clause guarantees the free exercise of religion, not just the right to inward belief.’ — JUSTICE NEIL M. GORSUCH, arguing for a broader view of 1st Amendment protections