Justice Neil Gorsuch delivering as Trump’s promised conservative
WASHINGTON (CNN) — In his scant two and a half months on the bench, Justice Neil Gorsuch has proven he’s no ordinary junior-most justice.
From his first day on the bench when he dominated oral arguments, to Monday, when he wrote a dissent in a case related to gay marriage, joined his conservative colleagues in a fiery response to the travel ban case and possibly provided the necessary fourth vote for the court to hear a major religious liberty case, Gorsuch has broken the mold.
Gorsuch is already delivering as the strong conservative President Donald Trump promised his voters when he ran for office last year.
“Whereas new justices usually take a beat before they start opining on every issue the court does (and doesn’t) address, Justice Gorsuch has asserted his exceptionally conservative views early and often across a dizzying range of hot-button issues,” said Joshua Matz, a lawyer and former clerk to Justice Anthony Kennedy.
Gorsuch’s recent opinions prove the point.
On Monday, Justice Clarence Thomas, joined by Gorsuch and Justice Samuel Alito, chastized their colleagues for not going far enough in the travel ban cases. The troika would have allowed all of Trump’s executive order banning people from six majority-Muslim countries to go into effect immediately.
Furthermore, they said that their colleagues’ “compromise” — allowing in people with connections to the United States — would “prove unworkable.”
And the three justices said that, at the end of the day, the Trump administration is likely to succeed in the case as applied to all non-citizens.
In another case Monday, the court ruled in favor of two married same-sex couples in Arkansas who challenged a state law that did not allow both partners to be listed as parents on a birth certificate. In an unsigned, majority opinion, the court cited Obergefell v. Hodges, the landmark 2015 opinion that legalized gay marriage, to summarily reverse the Arkansas lower court.
Gorsuch dissented. This time he wrote for the trio of himself, Thomas and Alito: “The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate.” Gorsuch’s biggest complaint was that the majority thought it was such an easy case and handled as a summary reversal it without setting it for full briefing and argument.
“Summary reversal is usually reserved for cases where the law is settled and stable, the facts are not in dispute and the decision below is clearly in error,” Gorsuch wrote.
Not even Chief Justice John Roberts, who wrote the principal dissent in Obergefell, signed on.
Gorsuch’s impact might also have been in play in a case the court decided to take up for next term.
Long before Gorsuch took the bench, a religious liberty case lurked on the docket as the justices decided whether to take it up next term. On Monday the court finally pulled the trigger after months of inexplicable inaction.
Next term, the court will consider the case of a Colorado baker who refused to make a cake for a same-sex couple’s wedding reception because he said it would violate his religious liberty. The couple sued and won under a state anti discrimination law. While no one knows the vote count, the unusual timing implies that there might not have been the necessary fourth vote to hear the case until Gorsuch was ready to participate.
“One of the biggest themes of Justice Gorsuch’s confirmation process was his commitment to an especially strong view of how the Constitution protects religious liberty,” said Steve Vladeck, CNN Supreme Court analyst and professor of law at the University of Texas School of Law.
“That came through in spades today not just in the Arkansas case, but in his separate concurrence in a case striking down a Missouri program that refused to provide otherwise available funds for preschool playgrounds to schools affiliated with religious institutions,” Vladeck said.
According to Vladeck, although the majority in that case was willing to resolve the dispute on relatively narrow grounds, Gorsuch wrote separately to suggest that the court could — and should — have issued a much broader ruling on religious liberty.
Those who pushed for his nomination were thrilled.
“Justice Gorsuch has, in his first couple of months on the Supreme Court bench, performed as advertised at his confirmation hearings,” said Leonard A. Leo of the Federalist Society, who worked with the White House on the nomination.
“He regularly demonstrated a deep and adroit commitment to interpreting the Constitution and laws as they are written,” Leo said.
Leo also noted something else about the court’s newest member. “He showed an early willingness to chart his own path in key cases,” he said.
Vladeck agreed. “For a Justice who’s been on the court for less than three months, it’s a remarkably self-assured set of opinions,” he said.