Chemerinsky: Gorsuch has quickly made his ideology clear
Erwin Chemerinsky
The most important development in the U.S. Supreme Court in the last year was the appointment and confirmation of Neil Gorsuch. A year ago at this time, many expected Hillary Clinton to be elected president and to see the confirmation of Chief Judge Merrick Garland—or perhaps even someone more liberal—to replace to Justice Antonin Scalia.
For the first time since 1971, there would have been a majority of justices appointed by Democratic presidents. With future vacancies likely, it was expected there would then be a liberal majority on the court for years and maybe decades to come.
Now, of course, it is all so different. Justice Gorsuch is just 49 years old, and could be on the court for the next four decades. With rumors of Justice Anthony Kennedy considering retirement, there is the prospect of another nomination from President Donald Trump and a court that will be more conservative than any other since at least the mid-1930s.
Gorsuch was sworn in on April 10, 2017, in time to participate in the April oral argument calendar. His first few months on the bench delivered a resounding message: He will be everything that conservatives dreamed of and that liberals feared. So far, he has voted with Justice Clarence Thomas 100 percent of the time.
The last day of the term, June 26, was stunning in revealing Gorsuch’s ideology. In Pavan v. Smith, the high court, in a per curiam opinion, held that both members of a same-sex married couple have the right to have their names placed on a child’s birth certificate. An Arkansas law automatically placed a husband’s name on a birth certificate if a married woman had a baby. But Arkansas refused to allow a lesbian mother’s wife’s name to be placed on her child’s birth certificate.
The court rightly regarded this as an easy case—it was decided without briefing or oral argument—in light of its decision in Obergefell v. Hodges, which held that same-sex couples have the right to marry and are entitled to all of the same rights and privileges as opposite-sex couples. Justice Gorsuch, though, wrote a dissent, joined by Justices Clarence Thomas and Samuel A. Alito, that sharply disagreed with the majority and would have allowed Arkansas to discriminate against same-sex couples.
On the same day, Justice Gorsuch was with Justices Thomas and Alito in expressing the view that President Donald Trump’s travel ban is constitutional. Two federal courts of appeals—the 4th Circuit and the 9th Circuit—affirmed preliminary injunctions against the travel ban that had been issued by federal district courts.
The United States government asked for a stay of these injunctions, and also for the Supreme Court to grant review. The court granted review in both cases, which will be heard in October. Additionally the court, in part, granted the government’s request to lift the injunction and partially allow the travel ban to go into effect.
Specifically, the Supreme Court said that the travel ban could go into effect “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” By contrast, the court came to a different conclusion for those who have a bona fide relationship with a person or entity in the United States. The court said that “for individuals, a close familial relationship is required … As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2.”
The court obviously was trying to strike a compromise pending its reviewing the legality of President Trump’s executive order. But Justice Thomas, joined by Justice Alito and Justice Gorsuch, disagreed and wanted the court to lift both injunctions and permit the travel ban to go into effect in its entirety. There is no doubt how these three justices will vote when the matter comes before the court this fall.
One of the most important and high-profile decisions of the term, Trinity Lutheran of Columbia Inc. v. Comer, also was an occasion for Justice Gorsuch to position himself at the far right of the court. The State of Missouri has a program where it provides reimbursement grants to schools that install playground surfaces made from recycled tires. The state provides this aid to public and secular private schools, but it had a strict and express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity. This is because of a provision of the Missouri constitution that prohibits the government from giving aid to religious institutions. Trinity Lutheran of Columbia, a religious school, applied for the aid and was denied. It sued claiming an infringement of free exercise of religion and equal protection.
The Supreme Court, in a 7-2 decision, held that Missouri violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status. Chief Justice John G. Roberts, Jr. wrote for the court and said that Missouri was clearly discriminating against religious institutions in the receipt of this benefit and that therefore the state had to meet strict scrutiny under the free exercise clause to justify the denial of the benefit.
The key question is how far this ruling will extend in requiring government aid to religious institutions. Chief Justice Roberts addressed in footnote 3, where he writes: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Pointedly, though, Justices Thomas and Gorsuch joined the majority opinion except for footnote 3. Each wrote separately to indicate that they would go much further, and indeed suggested that they would be inclined to overrule an earlier Supreme Court decision, Locke v. Davey, which rejected a constitutional duty of the government to aid religious institutions.
One final example of Justice Gorsuch’s conservatism on June 26 was his joining Justice Thomas’s dissent from the denial of certiorari in Peruta v. California. California law, like that in many states, prohibits a person from carrying a concealed weapon in public, but allows a person to obtain a permit to do so in the county where he or she lives or works. A permit can be issued by a county if the applicant demonstrates “good moral character,” completes a firearm training course and has “good cause” for carrying such a concealed weapon. The San Francisco-based 9th U.S. Circuit Court of Appeals, in an 8-3 en banc ruling, upheld the statute and concluded that there is no constitutional right to possess a concealed weapon. The Supreme Court denied review, with only Justices Thomas and Gorsuch dissenting.
Perhaps Justice Gorsuch will not be as conservative as these initial rulings indicate, or maybe he’ll change over time. But I cannot think of any new justice who so quickly and clearly expressed his ideology.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).
