Political Profiles: Supreme Court Nominee Neil Gorsuch – Strict Textualist or Conservative Firebrand?

BY JOE KEENAN

Judge Neil Gorsuch is President Trump’s nomination for the position of Associate Supreme Court Justice. He fills the seat of Justice Antonin Scalia, that has been vacant for over a year since Scalia’s death in February 2016. This profile will take you through his education and experience, as well as how his beliefs may shape his future rulings.

Education and Experience  

Gorsuch is eminently qualified. His education is the model for a Supreme Court Justice with Gorsuch attending Columbia University, Harvard Law School and receiving his doctorate in political philosophy from Oxford, where he was Marshall scholar. Having clerked for a DC Circuit Court of Appeals Justice and two Supreme Court Justices, it is unsurprising that Gorsuch was given the position of Deputy Associate Attorney General in Bush’s Justice Department. What is surprising, however, is Trump’s nomination of a man steeped in the ‘Washington Insider’ culture. Even Gorsuch’s upbringing, being raised in D.C by his mother Anne Burford Gorsuch who was the head of the EPA in the Reagan administration, completes the Establishment picture that should be anathema to Trump’s ‘Drain the Swamp’ rhetoric. However, having served for ten years on the 10th Circuit Court of Appeals, Gorsuch has a textbook CV for being nominated for the Supreme Court.

Beliefs

Gorsuch’s views on the contentious issues that the Supreme Court is frequently asked to rule on, such as abortion and gun rights, are never going to be clear cut. However, in certain areas he has offered definitive opinions, and it is possible to infer his views on some issues through interpreting statements and rulings that could be linked to these key issues.

All these views must be interpreted through the prism of Gorsuch’s originalism. Also known as textualism or minimalism, Gorsuch shared this ideology with his predecessor Antonin Scalia. Common amongst conservative judges and politicians alike, this relies on a strict interpretation of particularly the Constitution as they were written rather than interpretations that attempt to place texts within modern context. Laws are also taken literally, rather than allowing for vague language. Some political and legal scholars argue minimalism is positive because it allows fewer of the judges own prejudices to influence their rulings. However, this approach has been criticised for being slow to allow social change due to the now outdated views of legislators at the time laws were written.

Courts as an Instrument of Social Change

‘Addicted to the courtroom.’ ’Relying on judges and lawyers rather than elected leaders and the ballot box to as the primary means to effect their social agenda.’ In this 2005 National Review article, Gorsuch brings both barrels to bear on liberals he sees as attempting to subvert democracy by pushing socio-political change through the courts rather than legislature. Using some of his fieriest rhetoric, Gorsuch emphasises the courts as impartial arbiters and not de facto legislators shaping social change.

Abortion

Abortion is one issue on which Gorsuch has been notably quiet. Considering Trump’s campaign promise to nominate a Justice in favour of overturning Roe v Wade, his nominee has never given a definitive position on the issue. However, it is possible to attempt to piece together Gorsuch’s views from previous rulings and his views on different issues.

In terms of rulings Gorsuch has given as a Justice on the 10th Circuit Court of Appeals, few were directly related to abortion. Whilst not ruling on abortion itself, Utah Planned Parenthood Association v Herbert may offer some interesting insights. Concerning the legality of Utah Governor James Herbert defunding the women’s reproductive healthcare provider Planned Parenthood, the 10th Circuit Court of Appeals ruled to restore Planned Parenthood’s funding while the case was awaiting trial. Gorsuch disagreed with the courts’ decision, and demanded a full court hearing to settle a minor factual dispute concerning whether Governor Herbert acted with improper motive. Although this may seem insignificant, full court hearings are generally reserved for cases of exceptional importance, or cases where the court ruling is likely to challenge a previous ruling the court has offered. The case fulfilled neither of these criteria. It would have been unprecedented and extraordinary for a full court hearing to be held on this case. It is noteworthy then, that Gorsuch called for these extreme measures in a case where the funding of one of America’s largest abortion providers was at stake.

Gorsuch’s views on euthanasia are relevant here. His arguments in his 2009 book ‘The Future of Assisted Suicide and Euthanasia’ are telling. ‘Human life is inherently valuable’ and ‘the intentional taking of life by private persons is always wrong’. If these arguments seem familiar, it is because they are carbon copies of those given by pro-life advocates in favour of prohibiting abortion. Whilst not definitive, Gorsuch’s unimpeachable view of the sanctity of life could certainly be cause for concern to those in favour of reproductive rights.

Administrative Law

Irrefutably the most controversial of all policy areas is administrative law. I’m sure all those with a knowledge of political history recalls the ‘Great Administrative Law Riots’ of the past half century, bringing democracy almost to breaking point. In all seriousness, despite the dryness of the topic, Gorsuch’s view on administrative law may see federal agencies losing regulatory power over key policy areas. In the landmark 1984 Supreme Court case Chevron v Natural Resources Defence Council, the precedent was set that the courts would defer to federal agencies’ interpretation of ambiguous laws and regulations. Gorsuch objects to this ruling. In a 2016 immigration case, Gorsuch expressed support for overturning the Chevron precedent, allowing judges to interpret laws and not federal bureaucrats. Whilst this may seem like an entirely predictable move of a judge trying to seize more power for the judicial branch, it may be more sinister than that. With federal agencies having to be increasingly specific in writing regulations, there are more gaps for big business to slip through. If confirmed, Gorsuch could be corporations’ best friend, neutering the regulatory bodies that keep Americans safe from hazardous, environmentally toxic, cost-cutting measures.

Death Penalty

Unusual though it seems, Gorsuch’s rulings on the death penalty may provide some reassurance to pro-choice advocates. In the 1990s, Congress passed the Antiterrorism and Effective Death Penalty Act to limit the number of successful appeals for clemency achieved through federal courts. Despite his own beliefs about the sanctity of human life, Gorsuch’s minimalist approach to legislation makes him unsympathetic to petitioners on death row seeking clemency. In a silver lining to this rather dark cloud, it could suggest that Gorsuch is able to put his own beliefs to one side when considering legal arguments.

Religious expression

Key to Gorsuch’s conservative credentials is his historic protection of an individual’s right to religious expression. In the Hobby Lobby v Siberlius case, Gorsuch upheld a religious exemption for an employer to refuse to provide oral contraceptives under the company’s health insurance as required under the Affordable Care Act. Throughout his career Gorsuch has protected the right of individuals to violate certain laws and regulations when it goes against their faith. His general respect for religious expression is also apparent. In Summum v Pleasant Grove City, Gorsuch dissented from the court’s ruling that the local government had to allow other submissions of monuments to faith before erecting a statue of the Ten Commandments.

Legal System

In a system, renowned for being unnavigable for the untrained and uneducated, Gorsuch makes the case for simplification. He argues the legal system should not be inaccessible to anyone who didn’t go to law school, and using dense legal terminology when it is unnecessary only perpetuates this complexity. In his rulings, Gorsuch practices what he preaches. Renowned for being straightforward and witty, Gorsuch’s writing style is seen as similar to his predecessor Justice Antonin Scalia’s, but with none of Scalia’s acerbity. It is an honourable mission, especially when it is one that while he was pushing for it, would have left his own profession in lower demand.

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