President Trump delivered for the far Right early in his presidency, when he nominated arch-conservative Neil Gorsuch to replace the late Justice Antonin Scalia. Now that Justice Anthony Kennedy is retiring, these same forces are relishing the chance to replace the mostly conservative but occasionally moderate justice with another judge in the mold of Gorsuch.
In his brief time on the Court, (the full 2017-18 term and part of the previous one), Gorsuch has amassed a record that makes some things clear: His occupation of the seat Merrick Garland was nominated to fill has served the interests of the secret money donors who spent $18 million to get him there. He has also shown himself to be exactly what the religious right demanded in exchange for their fierce loyalty to Donald Trump.
He has been a reliable vote to weaken protections for working people, to harm immigrants, to weaken church-state separation, to prevent women from getting accurate and nonbiased medical information, to undermine vital safeguards in the criminal justice system, to take rights away from LGBTQ people, and to make it harder for Americans to use the democratic process to vote his fellow Republicans out of office.
On a whole panoply of rights, we know exactly what we would get with a new justice like Neil Gorsuch. So do the activists at the far Right Federalist Society and Heritage Foundation, who created Trump’s short list of possible nominees; so do the religious Right leaders who are thrilled at the opportunity they have to reshape our Constitution.
That is why we cannot let it happen.
Workers’ Rights and Corporate Power
Epic Systems Corp. v. Lewis (2018)
Gorsuch was both the deciding vote and the author of this 5-4 opinion, another in a series of rulings using forced arbitration to strip workers, small businesses, and consumers of their rights. The Court ruled that employers can make agreement to one-on-one arbitration a condition of employment. This strips working people of the right to engage in concerted activities for mutual aid or protection (basically, class actions), even though that right is specifically guaranteed in the National Labor Relations Act (NLRA). As Justice Ginsburg explained in dissent, this was particularly harmful in Epic because it will allow employers to violate minimum wage laws that protect our most vulnerable workers.
Janus v. AFSCME (2018)
Gorsuch voted with the other arch-conservatives to overrule a decades-old precedent protecting the right of public sector employees to engage in effective collective bargaining, a precedent decided within four years of Roe v. Wade. The Court ruled 5-4 that requiring non-members to pay fair-share fees for their representation is compelled speech on matters of public policy that violates their First Amendment rights. Other conservatives recognized the vacuity of the legal argument. For instance, Eugene Volokh and William Baude—no allies of unions—submitted an amicus brief explaining how this reasoning has no more First Amendment basis than invalidating income tax payments by taxpayers who object to government activities.
Encino Motorcars v. Navarro (2018)
Gorsuch joined his fellow conservatives in a 5-4 ruling that some 100,000 service advisors who work for auto dealerships are not entitled to overtime pay under federal law. As Justice Ginsburg wrote in dissent, this undermined more than 50 years of Supreme Court precedent that has narrowly interpreted exemptions to overtime pay requirements and thus provided important protection to vulnerable workers.
Religious Liberty
Trinity Lutheran Church of Columbia v. Pauley (2017)
Over Ginsburg and Sotomayor’s dissent, the Court struck down a state constitutional ban on direct financial grants to churches as applied to a state grant program for schools to resurface their playgrounds. The Court held that the state was denying Trinity Lutheran an otherwise available public benefit because of its religious status in violation of the federal Free Exercise Clause. Although Justice Gorsuch joined most of the opinion, he (along with Justice Thomas) did not join the part specifically limiting its holding to playground resurfacing. Only Thomas joined Gorsuch in his effort to craft an even more expansive ruling that would further erode church-state separation.
Demonizing Muslims
Trump v. Hawaii (2018)
Gorsuch voted to uphold Trump’s Muslim ban. He conveniently ignored the president’s overtly stated reason—to keep Muslims out of the country—and joined the opinion holding that when the president takes an otherwise lawful action in the area of national security and immigration, courts should turn a blind eye to obviously unconstitutional motivations.
Discrimination and Inequality
Masterpiece Cakeshop v. Colorado (2018)
Gorsuch joined the Court’s narrow ruling for the baker based on the facts of this case (a moderation likely due to Kennedy’s presence). He authored a separate concurrence to equate a refusal to make a wedding cake with overt political and religious designs (which does not violate state anti-discrimination laws) with refusal to make an ordinary wedding cake that can be used by any couple but will be used by a same-sex couple (which does violate anti-discrimination laws). Gorsuch perceives a difference between a generic wedding cake and a same-sex wedding cake for purposes of anti-discrimination laws, evincing either great ignorance about LGBTQ people or dangerous animus toward them.
Pavan v. Smith (2017)
Gorsuch joined Thomas and Alito in dissenting from the Court’s summary reversal of lower court defiance against the Obergefell v. Hodges marriage equality decision. The Arkansas Supreme Court had denied same-sex spouses the right to have both their names on their children’s birth certificates in the same manner as opposite-sex married couples. The Court majority—including Chief Justice Roberts, who had dissented in Obergefell—did not require oral argument to recognize that this violated equal marriage rights. Nevertheless, Gorsuch wrote a dissent (joined by Thomas and Alito) suggesting that Obergefell may require nothing more than state recognition of marriages, but not their equal treatment if the state can devise some rational reason for discriminatory treatment.
Abortion Access
NIFLA v. Becerra (2018)
Gorsuch joined the other ultra-conservatives in striking down California’s disclosure laws for fraudulent “crisis pregnancy centers” as unconstitutional compelled speech. Gorsuch (along with Roberts and Alito) also joined Chief Justice Roberts’ separate concurrence likening the disclosure laws to “how relentless authoritarian regimes are in their attempts to stifle free speech.” Justice Breyer (joined by the Court’s other three moderates) wrote a dissent warning of the majority’s misuse of the concept of freedom of speech. Since virtually every disclosure law could be considered compelled, content-based speech, the majority’s reworking of the First Amendment could very well “radically change prior law, perhaps placing much securities law or consumer protection law at constitutional risk.”
The Right to Vote
Husted v. A. Philip Randolph Institute (2018)
Gorsuch joined the other ultra-conservatives in a 5-4 ruling that upheld Ohio’s voter purge practice triggered by non-voting. He agreed with them that this did not violate the 1993 Motor Voter law, which prohibits striking someone from the voter rolls by virtue of their having not voted. Writing in dissent for the moderates, Justice Breyer explained in detail how Ohio’s purge was not consistent with the law. He reminded the majority that “the purpose of our election process is not to test the fortitude and determination of the voter, but to discern the will of the majority.” Writing an additional dissent for herself, Justice Sotomayor observed that the majority opinion Gorsuch joined ignored the history of voter suppression and upheld a program that furthered the disenfranchisement of minority and low-income voters that Congress set out to eradicate.
Abbott v. Perez (2018)
Gorsuch joined his fellow Right wing justices in this 5-4 ruling. The Court upheld Texas Congressional and State House redistricting schemes that a three-judge lower court had unanimously found had been adopted with the intent to discriminate against people of color. In dissent, Justice Sotomayor bluntly called out Gorsuch and the other conservative justices for distorting the facts and the law in order to achieve the result they wanted. She even invited members of the public to examine the record for themselves to see how different it was from the majority’s distorted description. As bad as the majority opinion was, Justice Gorsuch went even further: He joined a concurrence by Justice Thomas asserting that Section 2 of the Voting Rights Act does not apply at all to redistricting under any circumstances. His position would make it far easier for voter suppressors to draw district lines diminishing the ability of people of color to meaningfully affect elections.
Gill v. Whitford (2018)
All nine justices agreed not to resolve the question about unconstitutionally partisan gerrymandering because the plaintiffs had not demonstrated standing to initiate their lawsuit in federal court. The Court remanded the case to give the plaintiffs another chance to show standing under the standards set forth in the Court’s opinion. However, that decision was not unanimous: Gorsuch joined Thomas in arguing that the case should have been dismissed altogether. In a concurrence for the four moderates, Justice Kagan wrote that “partisan gerrymandering jeopardizes the ordered working of our Republic, and of the democratic process,” and she described how the plaintiffs could establish standing in the lower court.
The Rights of Immigrants
Jennings v. Rodriguez (2018)
Gorsuch joined the other far Right justices in holding that federal immigration law does not require the government to hold periodic (or any) bond hearings for detained immigrants. But only Gorsuch and Thomas took the position that the imprisoned immigrants were prohibited from even asserting their rights to a bail hearing until after they were ordered to be deported. Justice Breyer wrote the dissent, joined by Justices Ginsburg and Sotomayor (Kagan was recused), explaining that the majority opinion would put thousands of people at risk of lengthy confinement for months or years without any hope of bail, even though a substantial percentage end up being allowed to stay once their case is resolved.
Justice in the Criminal Justice System
Carpenter v. United States (2018)
Gorsuch dissented (along with Kennedy, Thomas, and Scalia) in this groundbreaking Fourth Amendment case. The Court held that police need a search warrant before ordering a cell phone company to hand over months of location information for a customer’s phone (and, by extension, for the customer). But Gorsuch also wrote a separate concurrence questioning the entire line of search and seizure cases in which the court determines whether a person has a reasonable expectation of privacy in whatever was searched. Gorsuch challenges the legitimacy of such an inquiry, writing it off as limited only by “the judicial imagination.” No other justice joined Gorsuch’s separate concurrence.
McGehee v. Hutchinson (2017)
Gorsuch joined the other ultra-conservatives in a 5-4 order denying several Arkansas prisoners’ application for a stay of execution by a method likely to cause excruciating pain. Significant evidence suggests that the drug designed to render a prisoner unconscious during execution instead leaves them awake, paralyzed, and unable to convey their agony over a sensation that has been likened to being burned at the stake. As a result, the manufacturer stopped making it. In order to use up the state’s remaining supply before it passed its expiration date, Arkansas was rushing to execute eight people over eleven days. The men on death row had serious legal arguments to make on appeal. For instance, one had a drunk defense counsel, and another had a judge who was having an affair with the prosecutor. But Gorsuch cast the deciding vote to allow the rushed executions to occur rather than give any of the prisoners a chance to argue their cases.
Murphy v. Smith (2018)
Joined by his four ideological colleagues, Gorsuch wrote an opinion in a case involving prison officials who severely abused and injured a prisoner. The Court effectively reduced the amount that prison officials must pay in damages to cover their victims’ attorney fees. Under their reading, a prevailing plaintiff who wins money damages and attorney fees has to pay the first 25% of those fees from the damages, reducing his actual recovery, potentially down to zero. Justice Sotomayor (joined by the other three moderates) explained in dissent how the plain text of the relevant congressional statute went against Gorsuch’s reading, and also criticized much of his reasoning. Using the relevant statute’s plain text and surrounding provisions, Sotomayor noted that Congress had rejected language that would have done exactly what the majority claimed the statute at issue required.
Currier v. Virginia (2018)
Justice Gorsuch wrote this opinion, which essentially allows the state to prosecute someone for a crime even after that person was found not guilty. In this case, a criminal defendant (Currier) was indicted for violating three criminal laws (one of which was being a previously convicted felon possessing a firearm) in the course of one action. Virginia law allowed him to split the issues into two different trials, putting the firearms crime second. He was found not guilty of breaking and entering and grand larceny. At the second trial, Gorsuch wrote that the state could nevertheless use evidence of Currier’s alleged breaking and entering and grand larceny—for which he had been found not guilty—in his trial for firearms possession.
Money in Politics
Republican Party of Louisiana v. FEC (2017)
The Court summarily affirmed a lower court ruling upholding federal limits on direct campaign contributions to political parties. Alone among the justices, Gorsuch and Thomas would have set the case for oral arguments. Not even the Court that gave us Citizens United has declared limits on direct contributions unconstitutional.
State Powers under the Commerce Clause
South Dakota v. Wayfair (2018)
This is another case where Gorsuch is even more extreme than Thomas and Alito. In 1967, following a line of so-called “dormant commerce clause” cases limiting states’ ability to obstruct interstate commerce, the Court had ruled that a state can’t require a seller to charge sales taxes on items it ships to the state if it has no physical presence in the state. The Court reaffirmed this in 1992, and the issue arose again this term. All nine justices agreed that the precedent was wrongly decided, but they divided 5-4 in deciding to overrule it. Gorsuch joined the majority (which was not the usual ideological grouping), but also wrote a separate concurrence suggesting the Court should revisit and overrule the entire line of “dormant commerce” cases. This is particularly interesting since at his confirmation hearing, Gorsuch assured senators that precedent “represents our collective wisdom, and to come in and think that just because I’m new or the latest thing and know better than everybody who comes before me would be an act of hubris, inappropriate to the judicial role.”
Conclusion
Neil Gorsuch’s occupation of a stolen seat on the Supreme Court is an important component of the greater assault on democracy coming from Donald Trump, his allies on the Hill and in the right-wing media. Replacing Anthony Kennedy with a justice in the mold of Neil Gorsuch would be a body blow to our democracy, to our liberties, and to the rule of law.
That is precisely why the Right wants another Gorsuch on the Court—and why Americans must do everything in our power to prevent that from happening.