At this early juncture of his tenure, Justice Neil Gorsuch has placed his bold, conservative bona fides in plain view, evincing an important shift in the center of gravity among the Court’s five conservatives.
It is difficult to get the full measure of a justice in the space of a few rulings, but Gorsuch’s choices as late leave little doubt as to the shape of his jurisprudence.
Perhaps the most important development of Gorsuch’s early tenure is his repeated alignment with Justice Clarence Thomas, a jurist often alone in concurrence or dissent articulating an originalist vision. This emergent nexus could indicate that the balance of power among the Court’s five conservatives is shifting away from the soft, institutional Toryism of the chief justice, to Thomas’ pure originalism.
On the final day of the term, Thomas and Gorsuch dissented from the Court’s refusal to take up a landmark Second Amendment case concerning the right of individuals to carry a handgun outside the home for self-defense. Thomas writes:
The Second Amendment’s core purpose further supports the conclusion that the right to bear arms extends to public carry. Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively.
He concludes on a defiant note:
For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.
Gorsuch and Thomas wrote separately again in Trinity Lutheran Church v. Comer, concerning secular public benefits for religious institutions. A 7-2 Court found that the state of Missouri cannot refuse Trinity Lutheran a grant simply because of its religious status, but the majority fractured as to the rationale. Chief Justice John Roberts wrote the Court’s opinion, joined in full by Justices Anthony Kennedy, Samuel Alito, and Elena Kagan. Gorsuch and Thomas only joined in part, declining to endorse a footnote in the opinion which suggests a distinction between religious status and religious use.
In effect, this footnote suggested that the Court’s analysis would be different if the public benefit in question was meaningfully connected to the church’s religious practice. Here, the grant concerned a surface material grant for the church’s playground, but Roberts left open the possibility of a different result — or at least a different inquiry — if the grant was substantially connected to the exercise of religion.
Gorsuch and Thomas registered reservations about the durability of a distinction between status and use. “Respectfully, I harbor doubts about the stability of such a line,” Gorsuch wrote. “Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission?”
“Often enough the same facts can be described both ways,” he added.
The pair, joined by Justice Samuel Alito, also dissented in part from Monday’s travel ban ruling, arguing the Court improperly tailored the scope of its stay. Where the per curiam Court allowed several classes of foreign nationals to enter the U.S. during the ban’s enforcement, Thomas, Alito, and Gorsuch would have allowed the ban to take effect without exception. The trio characterized the stay as “unworkable” and feared it will invite a flood of needless litigation.
These three “horsemen of the apocalypse” also dissented Monday from the Court’s summary reversal in Pavan v. Smith, an Arkansas case involving the state’s refusal to print the name of a non-biological LGBT parent on a birth certificate. A per curiam Court reversed the Arkansas Supreme Court’s ruling upholding the practice, citing “Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage.'”
Writing for the trio in dissent, Gorsuch suggests that Arkansas’s regime might have some rational basis, but is particularly aggrieved by the Court’s summary reversal, a rare practice generally saved for obvious errors of law in which the justices reverse a lower court without briefing and oral argument. “[I]t seems far from clear what here warrants the strong medicine of summary reversal,” he writes. “Indeed, it is not even clear what the Court expects to happen on remand that hasn’t happened already. The Court does not offer any remedial suggestion, and none leaps to mind.”
Cumulatively, Gorsuch wrote separately seven times in his first two months on the Court. Justice Elena Kagan, heretofore the Court’s junior justice, wrote separately as many times in her first two years on the bench.
His ascension to the tribunal also appeared to have a decisive effect on the trajectory of a high-profile religious liberty case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case asks the justices to resolve whether Colorado’s public accommodation law requires a Christian baker to produce a wedding cake for a same sex wedding, despite his contrary moral and theological convictions.
It is difficult to say what exactly transpired with respect to this petition — consideration of the case was “relisted” over a dozen times, an extremely rare occurrence. Conventional wisdom suggested that the justices had decided to reject the petition, and one of the conservatives was drafting a peppery dissent from denial.
Yet on the last day of the term, the Court agreed to hear the case. The Court does not reveal how the justices vote with respect to “cert petitions” or petitions to take a case, but it is quite possible that Gorsuch provided the requisite fourth vote to grant if one assumes that Roberts, Thomas, and Alito favored this outcome. We cannot now know whether the votes to grant came — in whole or in part — from the liberal justices, but it seems unlikely that action on the petition would be delayed for months if the liberals had already furnished the necessary support.
It appears then that the addition of Gorsuch revived a petition championed by religious conservatives that seemed bound for denial.
All this is to say nothing of his first opinion for the Court — crisp, straightforward, unanimous, and terminally boring. The case, Henson v. Santander Consumer USA Inc, concerned the scope of the Fair Debt Collection Practices Act (FDCPA), which proscribes collection standards for third parties pursuing debtors. The decision itself is of little consequence, but Gorsuch’s opinion shows he’s a thorough-going textualist and flashes a little judicial humility.
The ruling largely confines its analysis to the plain language of the FDCPA and repeatedly invokes the imperative of restricting the inquiry to the text of the relevant statutes. Gorsuch concludes by gently chiding the petitioners for asking the Court to rewrite the law:
[I]t’s hardly unknown for new business models to emerge in response to regulation, and for regulation in turn to address new business models,” he writes. “Constant competition between constable and quarry, regulator and regulated, can come as no surprise in our changing world. But neither should the proper role of the judiciary in that process—to apply, not amend, the work of the People’s representatives.
All told, in just a few months as a justice, Gorsuch has tacked a decidedly conservative course for himself and the future of the Court.
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