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What will Gorsuch face as a new Justice?

April 7, 2017 by Lyle Denniston


Becoming the ninth Supreme Court Justice, Judge Neil M. Gorsuch will have little time to get comfortable in the surroundings before he could be casting significant – and perhaps even decisive –votes. He joins a court of eight members, who have sometimes struggled to find enough common ground to avoid splitting evenly, a result that settles nothing.

In fact, Gorsuch could hold the decisive vote in a case that he is expected to join his new colleagues in hearing on Wednesday, April 19.   Potentially one of the biggest cases of this term, it tests the rights of religiously affiliated organizations to equal access to government benefits.  The court granted review on that case – Trinity Lutheran Church v. Comer -- almost 15 months ago, but has been holding off on considering it apparently because of the possibility that the eight Justices might divide 4-to-4 on it.

That challenge, and others he will face, will not be entirely new and strange: he served as a law clerk at the court almost 25 years ago.  But he will be the first to do that and then return later to serve alongside the Justice for whom he had worked: Anthony M. Kennedy, now the court’s longest-serving member.   

After the new Justice takes two official oaths and shows up for work, his first assignment will be a role as a “Circuit Justice” with the duty to handle emergency matters that come up from a lower court in one of the nation’s 13 federal circuits (geographic regions).  Each of the Justices gets assigned to at least one of those circuit regions; Gorsuch will pick up a circuit now assigned to a Justice who has more than one.

Often, those Circuit matters involve last-minute pleas by prison inmates seeking to put off their scheduled executions, but these filings can also involve significant constitutional or legal questions.   As is normal, Gorsuch will have the option of acting on such matters alone or sharing the action with his colleagues.

First Matters Before Gorsuch

One of the most significant emergency matters that is likely to reach the court soon, perhaps this month, would be a request to take some preliminary action on President Trump’s executive order limiting entry into this country of foreign nationals from Mideast nations.  Although the question may arise in a preliminary sense, it could be as important as whether the government can enforce key parts of the controversial presidential order.

When the eight-member court last took a significant action in a major controversy over immigration policy, it split 4-to-4 last term and thus left intact lower court rulings that had barred President Obama from putting into effect his delayed deportation order for individuals who had lived for long periods in the U.S. after having entered illegally or having stayed illegally after their arrival. 

There are real similarities between the issues of presidential power surrounding both the Obama and Trump initiatives.  A Gorsuch vote on the Trump order thus could turn out to be crucial.

His first scheduled working session with all of his colleagues will be on Thursday, April 13, when they gather behind closed doors to discuss new cases they might accept for review or turn aside.   The other Justices who are working on drafts of opinions on cases already argued will be deciding at that session whether they have any ready for public release during the following week.


Gorsuch And Current Cases

A new Justice ordinarily will not take part in deciding cases that had been heard before he or she joined the court.  If, however, the other Justices have wound up voting 4-to-4 on a not-yet-decided case, they could schedule a new hearing on such a case, probably to occur during the next term that starts in October, when Gorsuch could take part.

Among already-pending new cases that raise major controversies that could come up for early consideration by Gorsuch and his colleagues, at the April 13 session or later this Spring, are disputes over gay rights, gun rights and voting rights.

The gay rights case, if granted review, would put before the Justices one of the key issues that has arisen in the wake of the court’s ruling nearly two years ago in favor of same-sex marriage (the ruling in Obergefell v. Hodges).  That question is whether those who object to such marriages for religious reasons have a right not to provide goods or services to such couples.

That dispute not only would draw the court back into the midst of the abiding nationwide controversy over gay rights, but also would provide a new test for the nine-member court’s attitudes toward church-government relations.  The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission.  The specific question is whether a state can constitutionally enforce its civil rights law against a bakery whose owner refused, for religious reasons, to make a cake for a same-sex couple’s wedding party.

Judge Gorsuch has familiarity with this kind of conflict.  As a federal Circuit Court judge, he wrote an opinion in favor of the religious freedom claims of the family owners of the Hobby Lobby Stores, a retail chain of arts and crafts supplies.  The religiously devout family objected to a requirement under the federal Affordable Care Act that their stores provide birth-control methods for their female employees.   A divided Supreme Court later agreed with the victory handed to the family by the U.S. Court of Appeals for the Tenth Circuit.

The new Justice will face a religious freedom issue again in the scheduled April 19 hearing in the Trinity Lutheran Church case.  That involves the constitutional question of whether a religiously-operated school has an equal right to take part in a state program of handing out materials made from used tires to be used as school playground matting.   Such aid was barred for the school under the Missouri state constitution’s ban on any public aid to religion, even though the specific benefit had no religious content.

After taking no action on that case in more than a year, the Supreme Court has scheduled it for the final sitting of oral arguments without knowing whether it would have a ninth Justice by then, but perhaps in the hope that it might.

A dozen other cases set for the April hearing session will not be particularly challenging for Gorsuch or his colleagues, or of much interest to the general public.  Each of the others involves a quite narrow issue – the kind of cases the court has been regularly taking on in the 14 months that it has operated with only eight members, after the death of Justice Antonin Scalia.

At least one of those cases will be assigned to Gorsuch to write the court’s opinion, because each Justice usually gets at least one such assignment out of each argument sitting.

If, as seems quite likely, the court accepts any new cases for review between now and the end of the current term, probably in late June, those will be heard during the next term opening in October.


New Cases And Gorsuch

Among the new cases that Gorsuch and his colleagues will confront during coming weeks is a deeply controversial gun rights dispute, in the case of Peruta v. California.  The question is whether the Second Amendment’s “right to keep and bear arms” protects the carrying of a gun outside the home, even in a concealed way.   In the nine years since the court first ruled that the Amendment guarantees a personal right to have a gun for self-defense, it has never agreed to rule on a case involving questions about carrying a firearm in public.

The court also must decide fairly soon what to do with a major case on voting rights – always a staple on the modern court’s docket.  The case of North Carolina v. North Carolina NAACP involves the constitutionality of one of most restrictive voting rights laws in the nation, which includes such restrictions that a lower court found it to have revived the anti-racial specter of “Jim Crow” discrimination.  

After North Carolina elected a new Democratic governor, the state’s new leadership asked the court to simply dismiss the state’s pending appeal seeking to defend those restrictions.  That request seems to have been giving the eight Justices some difficulty.

Another voting rights controversy that has just reached the court is a test of whether courts have any valid way to judge the constitutionality of “partisan gerrymandering” – the practice of drafting new election districts specifically to give one political party’s candidates a special advantage in an election.  The new case involves an appeal by the state of Wisconsin, urging the court not to allow such challenges to go forward in the courts.  The court has never been able to craft a workable constitutional formula on when there has been too much partisanship in a redistricting plan.

The newest form of civil rights claims – the question of whether transgender people are legally protected from discrimination in government programs or policies by laws that outlaw bias based on sex – is developing in lower courts across the country and is certain to be before the court before very long.  It did reach the court earlier this term in a case involving a transgender youth in a Virginia high school who was denied access to the restroom that matches his gender identity, but the Justices chose to send that dispute back to a lower court to examine the Trump Administration’s change of policy to oppose legal protection for transgender people.

An older controversy, over whether the foreign nationals that the U.S. has detained at the military base at Guantanamo Bay, Cuba, are protected by any legal rights under American law, has been largely absent from the court’s docket for several years, but two new cases would thrust the court back into depths of that controversy.  The two appeals raise basic questions about the legality of the war crimes tribunals at Guantanamo, which have been largely stalled by legal missteps and complications.

The arrival of a new Justice could add a new perspective to that lingering controversy, since the legal fate of the Guantanamo detainees has never been an issue before the federal appeals court on which Judge Gorsuch has been serving.

In general, as soon as the new member of the court takes a seat at the end of the bench in his first public session, his every utterance – and even his posture – will draw the keenest attention for signs of how he will perform as the successor to Justice Scalia.  His opponents in the Senate argued that he would be at least as conservative as Scalia had been, and maybe more.  Lawyers and other court observers will be especially attentive to signs of his ideological leanings.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on

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