When President Obama failed to appoint a Supreme Court justice in his second administration after the death of Justice Antonin Scalia, it was clear that the Republicans were blocking his attempts to appoint a liberal to the Court in the hope that a Republican would win the 2016 election despite the odds-on favourite being the Democrat Hillary Clinton and then be able to appoint a conservative justice and restore the conservative majority on the Supreme Court. They perhaps didn’t think that they would actually defeat Hillary Clinton, but Donald Trump did just that and he has now been able to appoint Neil Gorsuch to the Court after a fierce battle in the Senate by Democrats to stop his confirmation. Republican Senator John McCain described his confirmation as a “bad day for democracy.” Now that the conservatives have a majority on the Supreme Court it is more than a bad day, but could be a bad generation for liberal rulings that will come before the Justices. At 49, Justice Gorsuch is the youngest appointment to the Court in a quarter of a century and could be on the Court for decades to come. The ideological battle for the Supreme Court has decidedly swung to the right and this doesn’t bode well for issues such as abortion, election financing, workers’ rights, gun control and LGBT rights when the Supreme Court is called upon to issue legal rulings on these and other issues.
In order to push through the confirmation, the Republicans had to resort to the so-called “nuclear option.” After only getting 55 votes (from 100 Senators) in support on Thursday, five short of the 60 required, the Republican Senate leader Mitch McConnell pushed through a vote to change the rules of the chamber by 52-48 votes. This change allowed Mr Gorsuch to be confirmed by a simple majority of the 100 Senators, 52 of whom are Republican. This tactic is known as the “nuclear option” because it is so extreme. The tactic by the Republicans also undermines bipartisanship and the ability of a minority of Senators to block the confirmation of a Supreme Court nominee. The Republicans decision to block an Obama-appointed nominee and now their changing the rules to suit themselves and overcome Democratic opposition is worrying as the appointment of the Justice to the Supreme Court touches on every aspect of American life and the Republican’s tactics will only increase the growing division in the legislature that has prevented anything getting done. The change in the rules of the chamber will now be the rule for all future Supreme Court nominations which undermines minority-party power in the Senate, which in the future may be the Republican party.
Oregon Senator Jeff Merkley described the underhand move in a Tweet: “The dark deed is done. McConnell has just put a knife into the heart of our We the People republic.” Even some Republican Senators realised the significance of what they were doing. Arizona Senator John McCain, speaking on Thursday morning, said: “I fear that someday we will regret what we are about to do. In fact, I am confident we will. […] It is imperative we have a functioning Senate where the rights of the minority are protected regardless of which party is in power at the time.”
Neil Gorsuch became the 113th Justice to serve on the Court after taking his constitutional oath, administered by Chief Justice John Roberts. In a ceremony at the White House Rose Garden after being sworn in President Trump joked on succeeding in getting his nominee appointed to the Supreme Court: “And I got it done in my first 100 days […] You think that’s easy?” The President also thanked Senate Majority Leader Mitch McConnell for all he did in the confirmation process: “for all he did to make this achievement possible”. As for the new Justice, Neil Gorsuch said:
“I am humbled by the trust placed in me today.
“I will never forget that to whom much is given, much will be expected.
“And I promise you to do all my powers permit to be a faithful servant of the constitution and laws of this great nation.”
Justice Gorsuch is a native of Colorado and has degrees from Colombia University, Harvard Law School and Oxford. President Obama was a classmate at Harvard. He had begun his law career clerking for Supreme Court Justices Bryon White and Anthony Kennedy, the latter who is now a fellow Supreme Court Justice. He practiced law in Washington and during the Bush administration was principal deputy associate attorney general at the Justice Department. He was first appointed to the 10th US Circuit Court of Appeals by former President George W Bush in 2006. He lives in Boulder, Colorado with his family and is also a law professor at the University of Colorado. He is also the only Protestant Justice on the Court, all other members being either Jewish or Catholic. Ironically, considering that President Trump is trying to undermine the Environmental Protection Agency (EPA), Justice Gorsuch’s mother, Anne Gorsuch Burford, was the first female director of the EPA during the Reagan administrations.
Justice Gorsuch’s conservative ideology has been clear to see. In 2006, writing in his book The Future of Assisted Suicide and Euthanasia, he said of abortion: “All human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” While the year before, in the National Review, he wrote: “American liberals have become addicted to the courtroom, [they keep] relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda”. Gorsuch is thought to favour textualism, or the interpretation of law according to its plain text and he holds a strict interpretation of the US Constitution, as it was originally understood by the Founding Fathers – a bizarre notion when you think that the Constitution was originally constituted well over 200 years ago and today’s America has changed beyond recognition in the centuries since. Although he has never ruled on abortion, one of his rulings show that he is not in favour of forcing employers to provide health insurance for workers (Hobby Lobby Stores vs. Sebelius, 10th circuit). Though a conservative he is not expected to question high-level rulings on abortion or gay marriage. He is known to be concerned about “executive overreach” in relation to President Obama’s use of executive orders to overcome Congressional gridlock and the Supreme Court ruling that encouraged courts to defer to government agencies in interpretation of ambiguous federal laws. Of this he wrote in 2016: “executive bureaucracies [were being allowed] to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design”.
Justice Gorsuch is in for a baptism of fire on the Bench with several important issues coming before it in the coming months. The following is taken from a BBC article, and outlines some of the cases and issues the Supreme Court will be dealing with…
Church and State
Trinity Lutheran Church of Columbia v Comer
One of the first cases Justice Gorsuch will hear, with oral arguments due to begin next week, concerns separation of church and state. A school run by Trinity Lutheran Church in Missouri sought to take part in a state programme that resurfaces playgrounds with rubber from recycled tires. But the Missouri Department of Natural Resources denied the request, arguing that the state constitution prohibited funding of religious organisations. Representing the church, the Alliance Defending Freedom said the denial infringed the church’s First Amendment rights. The case was accepted by the court in January last year but delayed a hearing for 15 months.
Masterpiece Cakeshop v Colorado Civil Rights Commission
The Supreme Court is due to decide this week whether to accept the case of a baker in Colorado who refused to make a wedding cake for a gay couple, on religious grounds. The lower courts found that the owners of Masterpiece Cakeshop had violated Colorado’s Anti-Discrimination Act (CADA), and the decision was upheld by the Colorado Court of Appeals. The case has been under consideration for acceptance by the Supreme Court since January, suggesting that Judge Gorsuch could tip the balance either way. He has previously found in favour of religious freedoms in the workplace, including in two of his most well-known cases. In Burwell v Hobby Lobby and Little Sisters of the Poor v Burwell, Judge Gorsuch ruled that a requirement for employers to cover contraception under their health insurance plans infringed their religious freedoms.
Peruta v San Diego
This takes up a lower court ruling that said the second amendment alone did not grant California gun owners the right to carry a concealed weapon in public places. The ruling granted counties the right to apply additional tests before granting a permit, including whether the applicant showed “good cause” to require it. The argument essentially boils down to whether the existing right to gun ownership for self defence at home extends to carrying a concealed weapon in public places. “Any prohibition or restriction a state may choose to impose on concealed carry – including a requirement of ‘good cause,’ however defined – is necessarily allowed by the [Second] Amendment,” said the lower court ruling. The ruling led to variation across counties, with some sheriff’s offices denying nearly all concealed carry applications. The restrictions are being challenged by a group of Second Amendment campaigners.
President Trump’s controversial executive order banning travel from six Muslim-majority countries is probably heading to the Supreme Court later this year. Justice Gorsuch repeatedly declined to comment on the issue during his confirmation hearings, but a Supreme Court case would provide a public test of his independence from Mr Trump, who nominated him for the court. The order is due to go before the Fourth Circuit and Ninth Circuit court in May. Another immigration issue which could make its way to the court at some point is Mr Trump’s attempt to strip federal funding from so-called “sanctuary cities” – cities that refuse to comply with federal orders to detain immigrants.
Hernandez v Mesa
This is the case of a 15-year-old unarmed Mexican boy who was on the Mexican side of the border when he was shot dead in 2010 by a US border patrol agent, in disputed circumstances. Sergio Hernandez’s family want to sue the agent for infringing the boy’s constitutional rights. The Supreme Court has already heard oral arguments in the case but the justices did not reach any conclusion. That opens the way for the case to be reheard with Justice Gorsuch on the bench.
North Carolina v North Carolina NAACP
In July, judges on the 4th Circuit Court of Appeals ruled against a North Carolina voting overhaul that they said targeted African Americans “with almost surgical precision”. The case went to the Supreme Court in August but split the justices 4/4 over whether to prevent the overhaul coming into effect before November’s general election. With the case due to go before the court again, Judge Gorsuch could swing the result either way.
These cases demonstrate vividly the consequence the confirmation of Justice Gorsuch could have on a swathe of issues throughout America, and these are just the beginning. The death of Justice Scalia and the Republicans success in replacing a conservative with a conservative and therefore restoring the 5-4 majority on the Supreme Court is a crucial victory for the Republican party and for President Trump. The intensity of the fight to appoint a chosen nominee over the last yea (the longest period a seat has been vacant on the Supreme Court since the Civil War in 1862)r has only succeeded in intensifying the divisions in the legislature in the US and, depending on how the new Justice will rule on the above issues and others, his appointment could set back American liberalism and liberal legislation for decades to come. It seems to me as well that his appointment is a challenge to the checks and balances of the American system of government. The President has power, but it is held back from extremes by Congress. The President can propose laws but Congress has to agree to fund them. The President can nominate Justices and other high-level appointments, but the Senate has to confirm them. The fact that the Republicans now have control of the Presidency, the Congress, Senate and Supreme Court is not good for representative democracy. The Republican’s decision to change the rules of the Senate to overcome the bias it has always given to minority-party opposition to Supreme Court nominees is a direct attack on this historic principle of protecting America from extremes through these checks and balances.