Gor­such as­serts self in rul­ings from right


Newly minted Supreme Court Jus­tice Neil M. Gor­such came out of the start­ing blocks quickly in his first months, firmly plant­ing him­self on the court’s right along with Jus­tices Clarence Thomas and Sa­muel A. Al­ito Jr. as de­fend­ers of re­li­gious free­dom and skep­tics of ju­di­cial med­dling in the other two branches’ work.

In a se­ries of rul­ings Mon­day, the last day of the 2016-17 ses­sion, Jus­tice Gor­such blasted col­leagues for an ag­gres­sive pro-gay-rights de­ci­sion in a case about same-sex mar­riages and chil­dren’s birth cer­tifi­cates, and he joined a se­ries of other opin­ions sig­nal­ing that he wanted to make a bold de­fense of First Amend­ment re­li­gious rights and Sec­ond Amend­ment gun rights.

In do­ing so, an­a­lysts said, he planted him­self to the ide­o­log­i­cal right of Chief Jus­tice John G. Roberts Jr. and seemed to

align him­self most fre­quently with Jus­tice Thomas, the court’s most lib­er­tar­ian-lean­ing mem­ber.

“The guy’s not afraid to write,” said Josh Black­man, an as­so­ci­ate pro­fes­sor at South Texas Col­lege of Law. “He’s not afraid to as­sert him­self.”

Con­firmed to the court in April, Jus­tice Gor­such par­tic­i­pated in only a small frac­tion of the cases this year. But in a year that lacked big-name rul­ings, his as­cen­dance was the big­gest story of the court’s term. He is al­ready cut­ting an out­sized fig­ure by ask­ing his fair share of ques­tions and tak­ing stances that sug­gest he will carve out his own ju­rispru­dence on the high court.

In one brief dis­sent Mon­day, he chided his col­leagues for mov­ing quickly to over­turn an Arkansas law re­fus­ing to list the name of a same-sex part­ner when a child is con­ceived through ar­ti­fi­cial in­sem­i­na­tion. He said the court should have at least heard the state’s jus­ti­fi­ca­tions.

In an­other dis­sent, Jus­tice Gor­such com­plained of the court’s timid­ity in de­fend­ing re­li­gious free­doms. The court ruled that a Mis­souri church couldn’t be barred from re­ceiv­ing gov­ern­ment money un­der a pro­gram de­signed to im­prove play­grounds.

Jus­tice Gor­such, though, said the court was creat­ing bizarre dis­tinc­tions sug­gest­ing there is a dif­fer­ence be­tween “re­li­gious sta­tus and re­li­gious use” when it comes to church and state in­ter­ac­tions.

“Does a re­li­gious man say grace be­fore din­ner? Or does a man be­gin his meal in a re­li­gious man­ner?” he won­dered. “The dis­tinc­tion blurs in much the same way the line be­tween acts and omis­sions can blur when stared at too long, leav­ing us to ask (for ex­am­ple) whether the man who drowns by await­ing the in­com­ing tide does so by act (com­ing upon the sea) or omis­sion (al­low­ing the sea to come upon him).”

He con­cluded that the First Amend­ment’s pro­tec­tions of re­li­gious free­dom shouldn’t care about the dis­tinc­tion ei­ther way.

“Af­ter all, that Clause guar­an­tees the free ex­er­cise of re­li­gion, not just the right to in­ward be­lief (or sta­tus),” he wrote, in an opin­ion joined by Jus­tice Thomas.

The two jus­tices also dis­sented from the court’s re­fusal to take up a gun rights case. They said the court was cop­ping out by re­fus­ing to give clear guid­ance on whether the Sec­ond Amend­ment pro­tects Amer­i­cans’ right to carry a firearm out­side the home.

They said the court was treat­ing Sec­ond Amend­ment rights as lesser guar­an­tees than other Bill of Rights pro­tec­tions.

For lib­eral pres­sure groups that urged the Se­nate to re­ject Judge Gor­such, his early rul­ings were omi­nous.

Al­liance for Jus­tice Pres­i­dent Nan Aron said he has placed him­self on the court’s “ex­treme right flank.”

“This is a crit­i­cal re­minder that Supreme Court ap­point­ments have far-reach­ing con­se­quences for our democ­racy,” she said, lay­ing down a marker for any high court va­can­cies that might arise un­der Pres­i­dent Trump.

Jus­tice Gor­such’s work with Jus­tice Thomas earned him some de­ri­sion.

“Neil Gor­such is Clarence Thomas’s Mini-Me,” Jef­frey Toobin, a lib­eral court an­a­lyst who works for CNN and The New Yorker, wrote on Twit­ter.

Mr. Black­man said that did a dis­ser­vice to the jus­tices, who bring their own de­vel­oped ju­di­cial philoso­phies to the court.

Jus­tice Gor­such filled the seat of Jus­tice An­tonin Scalia, who passed away in Fe­bru­ary 2016. Some con­ser­va­tives had hoped the new jus­tice would also live up to the legacy of Scalia.

Mr. Black­man said it’s too early to say whether that would hap­pen be­cause Scalia had “such a grav­ity” on the court.

“We’re talk­ing one of the top jus­tices of all time,” he said.

Lib­eral an­a­lysts, though, blasted Jus­tice Gor­such for what they have seen al­ready.

Barry W. Lynn, ex­ec­u­tive di­rec­tor of Amer­i­cans United for Sep­a­ra­tion of Church and State, said the judge’s re­li­gion rul­ings were par­tic­u­larly omi­nous.

“Neil Gor­such has made it very clear that he is tak­ing a very hard line in these re­li­gion cases that he re­ally does be­lieve that re­li­gious claims should al­ways pre­vail over any other civil rights is­sue.”

That could play out in one of the cases that the court said it will take up in the next term: the Mas­ter­piece Cakeshop’s fight with a Colorado civil rights com­mis­sion over the bak­ery’s re­fusal to bake a cake for a same-sex wed­ding. The bak­ery cites its re­li­gious be­liefs in re­fus­ing the job, but civil lib­er­ties groups say it can­not dis­crim­i­nate in its clients based on their sex­ual ori­en­ta­tion.

Jus­tice Gor­such may have been a de­cid­ing fac­tor in the case even reach­ing the court.

The case was pre­sented to the court last year, but the jus­tices put off a de­ci­sion about whether to hear it un­til Mon­day. It takes four jus­tices to agree to take up a case, and some lib­eral an­a­lysts said they fig­ured Chief Jus­tice Roberts and Jus­tices Thomas and Al­ito had been wait­ing for a Trump pick to be the fourth jus­tice.


Supreme Court Jus­tice Neil M. Gor­such seemed to align him­self most fre­quently with Jus­tice Clarence Thomas, the most lib­er­tar­ian-lean­ing mem­ber.

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