How far to right is he?
WASHINGTON» Exactly how conservative is U.S. Justice Neil Gorsuch?
A wide range of legal scholars said the next term of the Supreme Court, which begins Monday, probably would go a long way toward answering that question and foreshadowing how far to the right Gorsuch, 50, could shift the bench in the decades ahead.
“Going into nomination and confirmation, his proponents were confident that he would be a very conservative justice and his opponents seemed to have the same view,” said Richard Collins, a constitutional law professor at the University of Colorado Law School.
It’s a prediction that so far has held true.
In his first 15 cases during the previous term, the native Coloradan aligned himself every time with Justice Clarence Thomas — one of the most conservative jurists the high court has seen in decades — according to analysis by the website FiveThirtyEight.
“The coming term will further test the question of how conservative a justice he is,” Collins said.
On the horizon are cases that touch upon some of the most divisive — and increasingly partisan
— issues of U.S. society: voting rights, free speech and union dues.
The best-known of them is a dispute over a Colorado wedding cake.
In 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood and asked that owner Jack Phillips bake a cake to celebrate their nuptials. Phillips refused the samesex couple, citing his religious beliefs.
The Colorado Court of Appeals and the state’s Civil Rights Commission found his refusal was discriminatory, but Phillips appealed his case until the Supreme Court agreed in June to hear it.
Despite the attention, few experts expect there will be much suspense when it comes to Gorsuch.
During his 11 years on the Denver-based 10th U.S. Circuit Court of Appeals, Gorsuch gave broad latitude to religious-based arguments. Among them: the landmark Hobby Lobby case in which he sided with businesses that were opposed to an Affordable Care Act requirement that they provide employees with health insurance plans that include contraception coverage.
“It seems that he believes very deeply in religious liberty,” said Elizabeth Slattery of the conservative Heritage Foundation.
It’s for that reason, she added, that “all eyes will be on Justice (Anthony) Kennedy for this one” — as President Ronald Reagan’s appointee is much more likely to be the swing vote.
Other notable cases ahead include one that asks whether nonunion workers must help pay for collective bargaining in which they benefit and another that ex- amines whether the police need a warrant to get data on a person’s whereabouts from cellphone towers.
How Gorsuch helps referee these disputes won’t be the only issue under the microscope for the rookie justice. Politicos and court observers also plan to track his demeanor and outside activities — especially given the way Gorsuch filled the seat of the late Justice Antonin Scalia, who died in February 2016.
Senate Republicans blocked President Barack Obama’s choice for his replacement until Obama was out of office. They then pushed his nomination through the chamber after changing its filibuster rules.
In part because of the way it went down, Gorsuch recently took some heat for appearing with Senate Majority Leader Mitch McConnell in McConnell’s home state of Kentucky.
Gorsuch also was criticized for agreeing to speak last Thursday at the Trump International Hotel.
Although the event was hosted by an outside group and other justices routinely accept speaking invitations, some commentators said they were worried it sent the wrong message because President Donald Trump nominated him and Gorsuch one day could hear cases that emanate from his administration.
Trump’s hotel has also been the subject of legal action. Critics contend that stays there by overseas guests violate rules that restrict foreign payments to federal officials.
In his address at the hotel — with protesters outside — Gorsuch spoke of the need for civil discourse.
“We have to learn how to not only tolerate different points of view but to cherish the din of democracy,” The Washington Post quoted Gorsuch as saying.
Alan Chen, a professor at the University of Denver’s Sturm College of Law, said these appearances fit into a broader pattern of behavior.
“Anyone who has every argued a case before Justice Gorsuch knows he’s very confident in himself,” said Chen, a constitutional law professor.
If Gorsuch believed it was right to appear in Kentucky or at the Trump hotel, Chen suggested, then Gorsuch probably wouldn’t sweat outside criticism.
In the same way, Chen said it was in character for Gorsuch to ask a number of questions at his first Supreme Court hearing and also register his written opinion in several cases at the start of his new job.
When Chen argued before Gorsuch in an earlier appeals court case that looked at the botched execution of Oklahoma inmate Clayton Lockett, he said Gorsuch was “tough” and “very prepared.”
Chen represented Lockett’s estate in a lawsuit over that execution, but he said he was unable to convince Gorsuch, who sided with state officials.
In part because of that, Chen said it was unsurprising to hear that Gorsuch last week dissented from a stay of execution that the Supreme Court granted to a Georgia prisoner because of fears of a racial bias in his sentencing.
“It’s one more piece of evidence that he likely will be very deferential to the states,” said Chen, who described Gorsuch’s conservatism as coming from Reagan-era politics that contends the courts should “trust state and local (authorities) to do their job without intrusive federal oversight.”
Whether this hands-off approach will extend to the judicial oversight of elections is another big question for Gorsuch and the high court, said Michael Li of the left-leaning Brennan Center for Justice.
On Tuesday, the Supreme Court will hear arguments in the Wisconsin case Gill vs. Whitford that asks whether there’s a limit to which political borders can be drawn for partisan advantages.
Li said Gorsuch has a “fairly thin record on voting rights and redistricting overall,” so he’s somewhat of an unknown quantity. Still, Li added that Gorsuch’s generally conservative outlook meant that “a lot of people weren’t writing briefs aimed at him” and instead were focusing on other justices.
A related debate could play out in another elections case about voting rights.
In Ohio, officials developed a system that would purge voters from the rolls if they didn’t regularly cast a ballot or respond to a notice.