How Neil Gorsuch could affect the Supreme Court
Gorsuch could tip the balance on key issues on an evenly divided court.
— -- Neil Gorsuch, President Trump's pick to fill the Supreme Court slot left open by the death of Justice Antonin Scalia, was confirmed by the Senate in a bruising fight, after the upper chamber's Majority Leader Mitch McConnell invoked the so-called nuclear option, which allowed Republicans to end debate with a simple majority of votes, rather than the traditional minimum of 60, and push through the nomination.
On Monday, Gorsuch will be publicly sworn in as the 113th Supreme Court justice at 11 a.m. ET at the White House.
To help understand why the addition of Gorsuch, a judicial conservative ideologically similar to Scalia, to the nation's highest court matters, we reached out via email to Kate Shaw, an ABC News contributor and a Cardozo School of Law professor.
Let's step back for a second. What is the broad impact on the ideological makeup of the Supreme Court with the addition of Gorsuch? How do you see him fitting in on the court? He knows Anthony Kennedy well, yes?
Shaw: For over a decade, the court has been divided between four more conservative justices, four more liberal justices and Justice Kennedy, the swing vote on nearly every issue. Justice Scalia's sudden death nearly 14 months ago obviously changed that balance: Over the last year, the best outcome the conservative justices could hope for in most cases was a 4-4 tie if they could attract Justice Kennedy's vote. So Gorsuch's confirmation restores the state of affairs that existed on the court before Justice Scalia's death — which means the answers to a lot of pressing legal questions are again in Justice Kennedy's hands.
And yes, Gorsuch does know Justice Kennedy. Gorsuch served as a clerk for Kennedy as part of his clerkship for retired Justice Byron White. (Law clerks for retired justices frequently also become part of the chambers of an active justice.) When Gorsuch joins the court, it will be the first time a former law clerk will serve alongside his or her former justice on the court.
What happens now? What's the first thing on his plate? Does he report to work immediately?
He'll need to be formally sworn in, which involves taking two separate oaths of office — one he'll take at the Supreme Court and one at the White House. After that, he'll likely get to work immediately. The court is on recess this week but will resume hearing cases on Monday, April 17, and I'm sure he'll soon be hard at work — more likely already is hard at work — preparing to hear those cases. He won't participate in deciding any of the cases the court has already heard, unless the court decides to have them reargued, which it could well do in any case that appears to be deadlocked 4-4.
What upcoming cases should we watch closely that Gorsuch could affect now that he has joined the court?
The most anticipated case in the April sitting is probably Trinity Lutheran Church v. Comer, a case about whether a state constitutional provision that prevents state funds from going to religious institutions violates the federal Constitution — both the clause protecting the free exercise of religion and the clause guaranteeing the equal protection of the laws. Here a church that contains a playground applied for a state program that helps nonprofits resurface their playgrounds. The church was denied access to the program because of its status as a church, and it argues that this is unconstitutional.
I'd say the other big cases to watch right now are the various challenges to the president's second travel ban executive order. Both the 4th Circuit and the 9th Circuit will hear arguments in May on the constitutionality of the travel ban. Whatever happens in those cases, the losing party is virtually certain to seek Supreme Court review. Although the court doesn't typically hear cases between April and October, it's certainly not unheard of for it to do so — and I think it's quite possible here, in particular if the administration loses and asks the court to act quickly. The court could also rule without hearing arguments.
Let's dive into the travel ban for a moment. If the fight over the travel ban reaches the Supreme Court, you're saying it's possible that Gorsuch could give the conservative wing the votes needed to rule in favor of the Trump administration?
It's definitely possible. That's likely why the Trump administration took its time appealing its district court losses in both Maryland and Hawaii — because it wanted Gorsuch in place and thinks it has a good chance of getting his vote. Of course, there's no guarantee that Gorsuch will vote with the administration, but if the rest of the conservatives vote to uphold the ban, it's hard for me to see him breaking with them in his first major vote on the court.
From Gorsuch's record, are there cases where he might not necessarily rule as conservatives might expect him to?
Well, one of the threads of his jurisprudence that's gotten a lot of attention in the last few months is his skepticism of doctrines that require courts to defer to administrative agencies. Those views could result in him striking down some of the deregulatory actions the agencies are in the early stages of taking.
One area in which he might vote differently from Justice Scalia — and, in fact, could be more conservative — is campaign finance regulation. Though Scalia, like the other conservatives, was in general quite hostile to campaign finance regulation, he was actually a supporter of the constitutionality of disclosure requirements. (He wrote in one case, though this was not actually about campaign contributions, that "requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.") [Justice Clarence] Thomas, by contrast, thinks that compelled disclosure — for example, of the names and personal details of campaign contributors — violates the First Amendment. And it seems to me possible that Gorsuch could sign on to the Thomas position. In a largely deregulated campaign finance landscape, disclosure requirements are one of the only remaining mechanisms by which money in politics is regulated, so this could have a major impact.
How will the court be affected if the president is able to add another conservative justice?
I'd say the most pressing questions here are around the future of abortion. The court has long been closely divided on the question of whether the Constitution protects abortion at all, with a strong minority of the court taking the position that it does not. We don't know for sure what Gorsuch thinks about abortion, but a lot of people assume that he shares Justice Scalia's view that Roe v. Wade and its successor Planned Parenthood v. Casey were incorrectly decided and should be overturned.
Let's assume that's true. If Justice [Ruth Bader] Ginsburg were to leave the court and be replaced by a conservative like Gorsuch, you'd have only four votes in favor of Roe and Casey: [Stephen] Breyer, [Sonia] Sotomayor, [Elena] Kagan and Kennedy. (Kennedy joined the liberals last year in striking down a restrictive Texas abortion law. He's far more likely to uphold certain abortion restrictions than the liberal justices, but the most recent signs from him are that he has no interest in overruling Roe.)
This means that the Constitution's protection of abortion could be in real peril with another Trump appointment. I think at that point a lot of attention would shift to Chief Justice [John] Roberts. As a general matter, his inclination in such matters is to proceed incrementally. The court could uphold a series of abortion regulations, weakening the foundations of Roe and Casey rather than overruling them outright. The question then would be whether the court would be willing to take the next step and actually overrule them. Roberts is a real institutionalist, so it's possible that he'd take seriously the concerns that overruling long-settled precedents on such a divisive social issue might hurt the court's legitimacy and standing in the eyes of the public. That's essentially what happened in Casey, when everyone thought Roe would be overruled after personnel changes at the court, but it wasn't.
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