Neil Gorsuch, Donald Trump’s Supreme Court nominee, is a brilliant, witty, handsome, eloquent, perfectly pedigreed judge. He is, to put it another way, an extraordinarily difficult jurist for Democrats to oppose.
Gorsuch, who currently serves on the U.S. Court of Appeals for the 10th Circuit, is difficult to object to on personal or jurisprudential grounds. Although he is a rock-ribbed conservative, he conveys his ideas fluently and courteously and is well-liked by his colleagues on the left and right. And though his rulings can be reactionary, he has never directly stated his opposition to hot-button legal issues like abortion and same-sex marriage. Democrats may argue that Gorsuch is an illegitimate justice in a stolen seat, but the judge himself will not fit easily into the role of a villain. Whatever extreme positions he may hold will be concealed by his humble, articulate demeanor. It seems overwhelmingly likely that Gorsuch will soon sit on the Supreme Court of the United States.
Before his name emerged on Trump’s Supreme Court short list, Gorsuch was known for his opinions in two cases pertaining to the contraceptive mandate. When the 10th Circuit ruled in the Hobby Lobby case, Gorsuch wrote a concurring opinion explaining why religious corporations and their owners must be permitted to impose their beliefs on employees. His broad vision of religious liberty includes the right of employers to deny workers access to contraception through their own insurance plans if employers believe contraception to be evil. Gorsuch also insisted that the government could not require religious nonprofits to fill out paperwork exempting them from the contraceptive mandate. Signing documents to opt out of the mandate, Gorsuch wrote, made nonprofits complicit in something they found “sinful.”
The contraceptive cases involved the Religious Freedom Restoration Act, a federal statute. But the philosophy of broad religious freedom that Gorsuch embraced in these opinions translates easily into the constitutional context. There is little doubt that Gorsuch would join the court’s conservatives in finding that the government cannot force pharmacies to provide Plan B, as this requirement would violate the Free Exercise Clause of the First Amendment. Moreover, it is difficult to imagine Gorsuch voting against the cake-makers and florists who proclaim a free exercise right to discriminate against same-sex couples. Such a position would flow logically from his stance in the contraceptive decisions.
Speaking of same-sex marriage: Although Gorsuch will surely duck the issue during confirmation hearings, he should be a solid vote against gay rights on the court. Gorsuch identifies himself as a textualist and an originalist in the tradition of Justice Antonin Scalia, meaning he interprets the Constitution based on its plain language and original public meaning. By and large, this philosophy spurns the notion of constitutionally protected LGBTQ rights, since the framers of the 14th Amendment did not have sexual minorities on their radar.
Abortion rights, too, are difficult to square with Gorsuch’s brand of originalism, as the constitutional right of bodily autonomy is derived from a broad reading of the word liberty, not an explicit textual command. The judge’s strange crusade to let Utah cut off funding to Planned Parenthood affiliates—which involved bending appellate procedure to its breaking point—may hint at a personal distaste for abortion. And Gorsuch has all but admitted in a book on physician-assisted suicide that he does not believe constitutional liberty encompasses the right for terminally ill patients to end their lives.
Can progressives find anything to like about Gorsuch’s jurisprudence? Only in the gaps between his stated positions. His stance on the First Amendment is mostly unknown, but his assertion that corporations can hold religious beliefs would suggest that he also thinks they have protected free speech rights. He agrees that the Second Amendment guarantees an individual right to bear arms, though his view of the scope of that right—does it apply outside the home? does it protect military-style weapons?—is uncertain. He has issued few death penalty decisions but divulged no qualms about its constitutionality and will probably resist efforts to limit its application.
Not all, however, is hopeless for Democrats. Libertarian-minded progressives may appreciate a notably Scalian streak in Gorsuch’s criminal decisions. Like Scalia, he sees the Fourth Amendment right to privacy as essentially property-based, providing strong protections for those in the home. Like Scalia, he can be skeptical of overreaching prosecutions, especially by the federal government, that could criminalize innocent conduct. (This view, while admirable, seems to emerge from a distaste for zealous prosecution of white-collar crime, such as corporate fraud.) And he appears interested in limiting qualified immunity, which protects government officials (including police) from lawsuits when they infringe upon constitutional rights.
Still, liberals are sure to be distressed by Gorsuch’s rather severe attitude toward an increasingly controversial area of the law: judicial deference to agency decisions. Under the current doctrine of “Chevron deference,” courts must defer to an executive agency’s interpretation of an ambiguous federal statute, so long as that interpretation is reasonable. The principle here is one of democratic accountability: Executive agencies are part of a political branch, and if the people do not like an agency’s interpretation, they can vote out the executive and demand change. Judges are independent, and if the people do not like a judge’s interpretation, they cannot do much to change it.
While Chevron was once endorsed by Scalia himself, conservatives have come to attack the doctrine in recent years, arguing that agencies exert too much legislative authority and corrupt the constitutional design of separation of powers. Gorsuch agrees with that stance. In a recent opinion, he all but called for the Supreme Court to overturn Chevron and let judges decide for themselves whether agency interpretations of ambiguous statutes are reasonable. Soon he may have the chance to cast a vote in favor of killing Chevron once and for all.
If confirmed, Gorsuch will restore the ideology of the Supreme Court to about where it was before Scalia died. He is vastly more conservative than Judge Merrick Garland, the Obama nominee whom Republicans blocked for nearly a year in the hope—now realized—that a Republican might appoint Scalia’s successor. The memory of this ghastly disregard of basic constitutional norms will hang over Gorsuch’s hearings and may even tarnish his legacy. His confirmation process will have the whiff of illegitimacy, which Democrats will attempt to use to keep him off the court. But this strategy seems destined to fail, because it is so difficult to explain what is objectionable about Gorsuch himself. Yes, he is conservative, but he is not a rank partisan like Justice Samuel Alito, or a flame-throwing culture warrior like Scalia. He is a judge’s judge. And he is, in all likelihood, our next Supreme Court justice.
