By Robert Barnes and Ed O'Keefe
April 7, 2017
Newly confirmed Neil M. Gorsuch is likely to have an immediate impact at the Supreme Court, weighing in as early as next week on whether to consider expanding the breadth of the Second Amendment. He could play a decisive role this spring in determining how voting rights should be protected and in a major case on the separation of church and state.
The Senate voted 54 to 45 on Friday to confirm Gorsuch, ending more than a year of bitter partisan conflict over the ideological balance of the nation’s highest court. Gorsuch will be sworn in Monday, allowing him to join the court for the final months of its term, which ends in June.
A private ceremony at the court, overseen by Chief Justice John G. Roberts Jr., will be followed by an event at the White House. There, Gorsuch’s former boss, Justice Anthony M. Kennedy, will preside, marking the first time in the court’s history that a justice will serve alongside one of his former clerks,
President Trump’s pick of Gorsuch to be the nation’s 113th justice will restore a conservative-leaning, Republican-nominated majority to a court that has either deadlocked or drifted to the left since the death of Justice Antonin Scalia in February 2016.
Gorsuch’s nomination has been a rare, unalloyed victory for Trump, winning unanimous support from Senate Republicans. But it required a brutal fight with Democrats, who are still incensed that Senate Majority Leader Mitch McConnell (R-Ky.) refused to even hold a hearing for President Barack Obama’s nominee, Judge Merrick Garland. The political clash ended only when Republicans voted as a bloc to eliminate the ability of the Senate minority to filibuster Supreme Court nominees.
In the end, only three Democrats, from conservative states — Sens. Joe Donnelly (Ind.), Heidi Heitkamp (N.D.) and Joe Manchin III (W.Va.) — joined 51 Republicans to support Gorsuch. Sen. Johnny Isakson (R-Ga.), who is recovering from recent back surgeries, was absent.
Gorsuch’s arrival at the court as the replacement for another conservative jurist will not immediately alter the majority that has edged the court in a more liberal direction of late, upholding affirmative action, striking down laws restricting access to abortion and declaring same-sex marriage to be protected by the Constitution.
And it is unknowable exactly how the lifetime appointment of the 49-year-old Coloradan will affect the court in the decades to come. Gorsuch has a well-deserved reputation as a conservative on the Denver-based U.S. Court of Appeals for the 10th Circuit, even if he has not ruled on many of the high-profile issues that form the public’s image of the Supreme Court.
But reaction to the Senate’s vote — the closest margin since it approved Clarence Thomas more than 25 years ago — makes clear the expectations. Gorsuch was hailed by gun rights activists, antiabortion organizations and business groups, and denounced by environmentalists, feminists and unions.
They will not have to wait long to see where Gorsuch fits in.
Within the week, Gorsuch will join his new colleagues in considering whether to hear two lower-court defeats being appealed by gun rights organizations. A case about whether business owners may refuse to offer their wedding services to same-sex couples awaits resolution. Soon, the justices will take up North Carolina’s request that they overturn a decision tossing out as unconstitutional its tightened voting restrictions.
And heading toward the court is Trump’s revamped travel ban on refugees and certain immigrants, a case that Senate Democrats said will test Gorsuch’s independence from the man who chose him for the high court.
“One notable difference between this nomination and those past is that Trump had clear, stated litmus tests for his nominee,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center, which opposed Gorsuch’s confirmation. “Gorsuch will have the opportunity almost immediately to demonstrate just how closely he fits within two of President Trump’s stated litmus tests for his high-court nominee — guns and religion.”
It seems likely that Gorsuch holds the key to a long-delayed case that is the court’s most important of the term regarding separation of church and state. A church-affiliated school in Missouri is challenging that state’s refusal to let it participate in a grant program that provides playground safety materials.
Trinity Lutheran Church says religious institutions are unfairly excluded from such state programs. The state points to a clause in its constitution that says “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.”
The court accepted the case nearly 15 months ago, when Scalia was still alive. But it delayed scheduling the case for oral argument until now. That might be an indication that the court has been divided on the issue from the beginning and needs a ninth vote to break the tie.
Gorsuch was an outspoken supporter of religious objectors in two cases involving the Affordable Care Act. In Hobby Lobby v. Sebelius and Little Sisters of the Poor v. Burwell, Gorsuch wrote that a requirement that employers provide contraceptive coverage for their employees could make the religious complicit in what they consider a sin.
The court is also considering a petition from a Denver baker who was found to have unlawfully discriminated against a gay couple by refusing to sell them a wedding cake.
Lower courts ruled that Jack Phillips, the owner of Masterpiece Cakeshop, violated Colorado’s public accommodations law, which prohibits refusing service to customers based on factors such as race, sex, marital status or sexual orientation.
The Supreme Court has listed the case as “under consideration” for weeks, without announcing whether it is accepting the case or turning it down.
That has led to speculation that the justices have decided not to take the case and that one of the conservative justices is writing a dissent against that decision. But it could also be that three justices want to take the case and are hoping Gorsuch will provide the fourth vote required to accept a case.
“It seems likely, in light of his past votes in cases like the Little Sisters and Hobby Lobby, that Gorsuch would be a vote to grant in that case,” said John Elwood, a Washington lawyer who closely watches the court’s deliberations on accepting cases.
On the other hand, Elwood said, “it’s hard to predict how Gorsuch might vote on whether to take issues like the gun cases and voter-ID cases.”
Two gun issues await at Gorsuch’s first private conference with his new colleagues Thursday, when the court meets to decide whether to accept a long list of cases for the term that begins next fall.
The most important is a petition from gun rights activists asking the court to find for the first time that the Second Amendment right to keep a gun for self-defense extends to carrying firearms outside the home.
In cases from California, the full U.S. Court of Appeals for the 9th Circuit ruled that it did not. “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,” it said.
A strongly worded dissent said “any fair reading” of the Supreme Court’s 2008 decision finding a constitutional right to gun ownership for self-defense “compels the conclusion that the right to keep and bear arms extends beyond one’s front door.”
A second case involves whether those convicted of certain crimes can be barred indefinitely from possessing firearms.
On a different subject, the court must soon decide what to do about North Carolina’s request that the court review a decision striking down its voting law. The U.S. Court of Appeals for the 4th Circuit said the law was unconstitutional because it was drawn to “target African Americans with almost surgical precision.”
The case already has divided the Supreme Court. In August, the justices split 4 to 4 on whether the decision should be stayed so that the law would be in effect for the November elections. The lack of a fifth vote meant the restrictions did not govern voting in last fall’s election.
Gorsuch may have an impact on cases that already have come before the court. Normally when the court is deadlocked, it issues a one-paragraph statement that affirms the decision of the lower court, without setting a national precedent.
This term, however, there may be cases that the eight justices have already considered in which they reached an impasse but decided to hold back any announcement, awaiting Gorsuch’s confirmation. In that scenario, the court would order new oral arguments to allow Gorsuch to join the deliberations.
One case that seemed to divide the justices at oral argument, for instance, concerned whether the Mexican parents of a boy killed in a cross-border shooting could sue the Border Patrol agent who fired the shot.
Until there is another change on the court, Gorsuch will be likely to reestablish the basic arithmetic of the Supreme Court under Roberts — four consistent liberal justices, four fairly consistent conservatives, and Kennedy providing the deciding vote when there is a deadlock.
But Wydra said the addition of Gorsuch does more than simply replace Scalia with a like-minded justice.
“Substituting Gorsuch for Scalia extends the conservative life of that seat for another few decades,” she said.
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