Judge Neil Gorsuch included a line in his first remarks as a Supreme Court nominee that signals just how closely his approach to deciding cases aligns with the late Antonin Scalia, the polarizing and reliably conservative justice whose seat Gorsuch would fill.
“A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands,” Gorsuch, 49, said at the White House last Tuesday.
It’s a line that embodies the judicial philosophy championed by Scalia, to interpret the Constitution and laws as they were written and let the text dictate the outcome — although the outcome of his analysis was usually preferred by conservatives.
A similar approach has resulted in decisions by Gorsuch that delight conservatives looking to bolster religious freedom and reign in federal regulatory power, and raise concerns from progressives about abortion rights and other civil rights issues.
In contrast, President Barack Obama had sought to appoint justices, as he wrote, with “life experiences,” who grasp the way the law “affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times.” Conservatives accused Obama of seeking justices who would rewrite laws instead of interpreting them.
While it’s impossible to know for certain how a potential justice might rule on individual issues, several legal academics studied Gorsuch’s past rulings to predict how similar ideologically he would be to Scalia. Pretty closely, it turns out, for the judge with a solidly conservative record.
One particular Gorsuch opinion about the power of regulatory agencies highlights an area in which he differed from Scalia — kind of — and why a judicial philosophy can be so polarizing.
Last August, in a case called Gutierrez-Brizuela v. Lynch, Gorsuch called for the Supreme Court to reconsider its 1984 ruling that created the Chevron doctrine, which requires federal courts to side with a regulatory agency’s interpretation of a statute unless it is unreasonable. Scalia endorsed the Chevron doctrine in a speech early in his career on the Supreme Court.
For progressive groups, overturning the Chevron doctrine would mean courts would no longer defer to agency experts when it comes to enforcing regulations about the environment, labor and more. Deference to the Equal Employment Opportunity Commission and the Department of Education, for example, are central to the ongoing legal fight over transgender bathroom rights.
“Overruling this precedent would cause far-reaching repercussions and serious harm to everyday Americans,” the liberal group, People for the American Way, wrote in a statement. “The doctrine is crucial for worker protections, scientific advancement, and more.”
There were signs Scalia was rethinking his position, however, including in a 2014 dissent that said too many important decisions were being made by government officials “rather than by the people’s representatives in Congress.”
Conservative legal groups agree with Scalia’s sentiment at that time, and so do conservative members of Congress. The House passed Republican-backed legislation last July that would override the Chevron doctrine, saying it would stop agencies from using regulations to push political priorities. Obama threatened to veto the bill and it died in the Senate.
Gorsuch agrees, too, calling Chevron in the August opinion “an elephant in the room” that permits “executive bureaucracies 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.”
“Maybe the time has come to face the behemoth,” Gorsuch added.
President Donald Trump promised during the campaign to put justices he considers “pro-life” on the court, and Gorsuch’s record on women’s reproductive rights has already drawn criticism from the top ranking Democrat on the Judiciary Committee, Sen. Dianne Feinstein of California.
In what is his best-known case, Gorsuch wrote a concurring opinion in the 10th Circuit opinion that backed the retail chain Hobby Lobby over the mandate in Obama’s 2010 health care law to provide contraceptive coverage for employees. He later backed a group of nuns in a case over the contraception mandate for nonprofits.
Gorsuch wrote a dissent that cut against Planned Parenthood as Utah tried to defund the women’s health organization last year. He also wrote a book about assisted suicide that legal watchers point to as a sign of his thinking on Roe v. Wade, the landmark 1973 decision legalizing abortion nationwide.
The rulings “suggest he would strike at the core of Roe,” Andrea Miller, the president of the National Institute for Reproductive Health, said in a statement. “We are deeply concerned that Trump’s appointment of Neil Gorsuch for U.S. Supreme Court is an extension of the Trump administration’s attacks on women’s rights.”
Feinstein, in a statement last Tuesday, also said she was “deeply concerned.” She pointed out that Trump said in a campaign debate that overturning Roe v. Wade would, as he put it, “happen automatically, in my opinion, because I am putting pro-life justices on the court.”
“Then tonight, President Trump declared, ‘I am a man of my word.’ That’s exactly what I’m afraid of,” Feinstein said. “Judge Gorsuch voted twice to deny contraceptive coverage to women, elevating a corporation’s religious beliefs over women’s health care.”
Religious liberty, other issues
The Trump administration will tout Gorsuch’s rulings in favor of religious liberty, citing the Hobby Lobby case. His supporters will also point to two of his rulings on prison inmates and religion.
In one, Gorsuch ruled in favor of a Native American inmate who wanted to have access to a sweat lodge for religious reasons. And in another case, Gorsuch sided with a Muslim inmate who wanted halal food to properly celebrate holidays.
There are some contentious areas of the law, such as the Second Amendment right to possess firearms, where Gorsuch doesn’t have much of a history that also could become a focus of a confirmation fight.
“While there is no paper trail of where Judge Gorsuch stands on guns, his selection by the NRA-backed Trump/Bannon White House certainly gives us a hint,” Josh Horwitz, executive director of the Coalition to Stop Gun Violence, said in a statement. “If Gorsuch shares the NRA’s toxic ideology, he is already at odds with the overwhelming majority of Americans.”
Another unexplored area is campaign finance law. “The most important question President Trump’s nominee will face is where he will stand on the special interest politics that has stricken the Court,” Democratic Sen. Sheldon Whitehouse of Rhode Island said in a statement.
Demos, a liberal advocacy group, said Gorsuch’s record on money in politics is sparse but “raises significant concerns.”
“In his only opinion directly addressing money in politics, Judge Gorsuch expressed openness to providing a higher level of constitutional protection to a donor’s right to make political contributions than the court currently affords the right to vote,” the group wrote.