Neil Gorsuch. Is he worth the fight?

By now, everyone living in the United States, at least those who are not living under a rock or in a self imposed news blackout, has heard that Neil Gorsuch has been nominated to hold the seat on the Supreme Court once occupied by Antonin Scalia. But what does that mean for the average US citizen and should the average Joe really care?

First of all, even though we hear a lot about the Supreme Court, what does it really do? We know that handing down its decisions many times results in large crowds of protesters gathering on the steps of the Supreme Court building in Washington DC, but what practical effect do those decisions have on us as individuals? Most of the time it is not really easy to tell.

Jurisdiction and Structure of the Federal Court System

To understand a little bit about what the court does, we need to take a look at what the Constitution tells us is the jurisdiction of the court.

Article 3, section 2 of the United States Constitution sets forth the jurisdiction of the Supreme Court:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

For the purposes of this post we can greatly simplify the language thus: the primary purpose of the Supreme Court is to hear cases that arise under the United States Constitution, under federal law (that is laws enacted by the United States Congress and signed by the president of United States), disputes over treaties entered into between United States and other countries, and disputes between citizens of different states.

The other part of our judicial system that is difficult for a lot of people to grasp is the organizational structure of the court itself. In a nutshell: the federal court system is divided into 3 parts, the federal district courts, the courts of appeal, and the United States Supreme Court.

In the United States there are 2 separate court systems: the state courts and the federal courts. The federal court’s jurisdiction is that which is set forth above. In our own personal lives, the state courts are most people’s primary contact with the court system, if in fact there is one.

The federal district courts are the federal trial courts, whether civil or criminal. Every case that is filed in federal court (with a few exceptions) must begin in Federal District Court. A party that disagrees with the decision of a Federal District Court may file an appeal. That appeal is to one of the 13 Circuit Courts of Appeal. A party who disagrees with the ruling of the Circuit Court may, under certain circumstances, file an appeal with the Supreme Court.

The bigger question is, “Do we really want Gorsuch on the Supreme Court?”

So in our day to day lives as ordinary citizens United States, it is not entirely easy to bring ourselves within the jurisdiction of the federal court system. Far and away our primary contact with the law is through local ordinance and state laws, although it is possible to either blur or cross over the lines of jurisdiction between state and federal courts. For example, driving under the influence of alcohol would typically be governed by state and local laws regulating such matters; however, if one were to allege that a particular class of people, say women, black or Hispanic, were being disproportionately targeted by law enforcement a claim might be properly filed in the federal courts pursuant to federal regulations and constitutional claims.

A Few Supreme Court Cases That Have Directly Affected Most Americans

While we might brush aside most Supreme Court decisions as inconsequential to us, there have been a few throughout the course of its history that have directly touched our lives and affected us personally. This list is not exhaustive or exclusive, only illustrative.

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), was a landmark United States Supreme Court case in which the Court declared state laws establishing separate public schools for black and white students to be unconstitutional.

Loving v. Virginia, 388 U.S. 1 (1967), is a landmark civil rights decision of the United States Supreme Court, which invalidated laws prohibiting interracial marriage.

Roe v. Wade, 410 U.S. 113 (1973), is a landmark decision by the United States Supreme Court on the issue of abortion. It was decided simultaneously with a companion case, Doe v. Bolton. The Court ruled 7–2 that a right to privacy under the Due Process Clause of the 14th Amendment extended to a woman’s decision to have an abortion

Lawrence v. Texas, 539 U.S. 558 (2003) is a landmark decision by the United States Supreme Court. The Court struck down the sodomy law in Texas in a 6-3 decision and, by extension, invalidated sodomy laws in 13 other states, making same-sex sexual activity legal in every U.S. state and territory.

Citizens United v. Federal Election Commission 558 U.S. 310 (2010) is a U.S. constitutional law and corporate law case dealing with the regulation of campaign spending by organizations. The United States Supreme Court held (5–4) on 21 January 2010 that freedom of speech prohibited the government from restricting independent political expenditures by a nonprofit corporation. The principles articulated by the Supreme Court in the case have also been extended to for-profit corporations, labor unions and other associations.

Obergefell v. Hodges, 576 U.S. ___ (2015), is a landmark United States Supreme Court case in which the Court held in a 5–4 decision that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.[2][3]

So, is it Worth it to Fight the Gorsuch Nomination?

Here is a summary of what various people have had to say about the current nominee, Neil Gorsuch. First, and in fairness, even his critics believe that he is “qualified” to be a judge. I take the term “qualified” to mean that he knows how to be a judge–that he’s been a judge long enough to learn the ropes and to know how to do the job. So, okay, yeah he can do the job. The bigger question is, “Do we really want Gorsuch on the Supreme Court?”

Under current Senate rules, 60 Senators have to agree to proceed to an up-or-down vote on Gorsuch, who currently serves as an appeals court judge in Colorado. Republicans have 52 seats in the Senate. But GOP leaders could employ the “nuclear option” to change the rules and allow Gorsuch to be confirmed with a simple majority of 51 votes.

An Originalist.

According to the Wall Street Journal (and many other sources), “Like Scalia, Gorsuch is a proponent of originalism — meaning that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written — and a textualist who considers only the words of the law being reviewed, not legislators’ intent or the consequences of the decision.”

According to Wikipedia,

“Originalism is an umbrella term for interpretative methods that hold to the “fixation thesis”—the notion that an utterance’s semantic content is fixed at the time it is uttered.[4] Originalists seek one of two alternative sources of meaning:

  • The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists.
  • The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. It is this view with which most originalists, such as Justice Scalia, are associated.”

Obviously, this interpretive viewpoint does not allow one to view the Constitution as a “living, breathing document” which is capable of growing with the society it is designed to guide and govern.

In a speech to Case Western Reserve University School of Law in Cleveland, Gorsuch said that legislators “may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future,” but “judges should do none of these things in a democratic society.” Instead, they should use “text, structure and history” to understand what the law is, “not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” While this may sound strategy, it is the same logic and interpretive leanings that brought Scalia to most of his holdings and has  seemed to always lead Gorsuch to conservative outcomes.

On abortion, activists on both sides of the issue believe they know where he stands. They point to language in his book “The Future of Assisted Suicide and Euthanasia,” in which he opines that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.”

We also know that he sided with Hobby Lobby and in Little Sisters of the Poor in its objection to providing contraceptives to employees under the Affordable Care Act saying “The opinion of the panel majority is clearly and gravely wrong—on an issue that has little to do with contraception and a great deal to do with religious liberty,” he wrote in a dissent in the Little Sisters of the Poor case. “ When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion.”

LGBTQ Issues. In a lengthy article on on Gorsuch’s LGBTQ “record” author Mark Joseph Stern writes:

Despite the relative novelty of legal same-sex unions, the constitutional question here should be easy—even for an originalist like Gorsuch. Both conservative originalists (like Steven Calabresi) and liberal originalists (like Akhil Amar and Elizabeth Wydra) have concluded that the 14th Amendment protects same-sex couples’ right to marry. But Gorsuch appears to disagree. In a 2005 National Review op-ed, Gorsuch mocked the court battle for same-sex marriage as a political fight dressed in constitutional garb.

“American liberals,” he wrote, “have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda” on liberal issues including “gay marriage.” He also noted that voters routinely rejected same-sex marriage on the ballot, scoffing that liberals can only “win a victory on gay marriage when preaching to the choir before like-minded judges in Massachusetts.”

His comments on same-sex marriage itself are discouraging enough that it seems safe to assume he’s a skeptic of related rights and privileges. And his desire to accommodate corporations’ religious beliefs—even when they burden employees—raises the possibility that he would let religious businesses discriminate against same-sex couples.

Gorsuch actually has a record on transsexual issues where he joined a decision flatly rejecting the constitutional claims of a transgender prisoner who alleged that she was being given inadequately low doses of hormone treatment in violation of the Eighth Amendment, and being housed in an all-male facility in violation of the Equal Protection Clause.

In another case he upheld an employer’s decision barring a trans woman from using the women’s restroom until  she could “prove completion of sex reassignment surgery,” then let her contract expire.

Employment Discrimination. Between 2007 and 2016, Judge Gorsuch issued the majority opinion in 14 (published) employment discrimination cases: 9 were favorable to the employer, 3 were favorable to the employee, and 2 were partial affirmances and partial reversals of the district court and, as a result, had both favorable and unfavorable effects for the employer and employee. None of these 14 opinions garnered a dissent.

Federal Regulations. Courts have long given deference to federal agencies in their rule making roles under the idea that courts should defer to agencies when a given law or rule is unclear. The assumption is the decision makers at the agencies are experts, and Congress wants courts to back off and let them do their thing. Gorsuch, not so much.

Known as the Chevron deference, which takes its name from a 1984 case involving the oil company and the EPA. Critics like Gorsuch argue the idea gives too much power to agencies like the FCC, EPA, or the National Labor Relations Board. The critics feel it shields agencies from proper oversight from the judicial branch, and can let regulators run amok. (Defenders of the doctrine would say it’s a commonsense and efficient way for agencies to operate, and point out courts can still step in if an agency goes off the rails).

If Gorsuch’s views in this field gain traction on the Supreme Court, the result would diminish the power of regulators, who would proceed more cautiously since they would have a greater fear of being sued. Many businesses, which have complained of a growing regulatory burden, would welcome this outcome. Consumer advocates, however, would likely fear any attempts Gorsuch and the Supreme Court to undercut Chevron because agencies are often on the front line of protecting the public.

It is also expected that corporations will see Gorsuch as an ally in their push to rein in class actions over violations of securities law. As the Wall Street Journal notes, Gorsuch has railed about such suits as an opportunistic shakedown by lawyers.

On environmental matters, Gorsuch is almost certain to be part of a conservative majority.

Will Gorsuch be confirmed by the Senate? Are his views on federal regulations, LGBTQ rights, abortion, employment, religious freedoms, etc be enough to sustain a democratic filibuster in the Senate? Do democratic senators care enough to filibuster? Do we really want another originalist on the bench?

At a time when our country seemed to be reaching an apex of awareness and acceptance concerning human rights, the advancement of the races, sexes, genders and orientations is this the direction the Supreme Court should be taking? Do we want–need–a justice who sees the Constitution as a living document, one that grows and envelopes us as we grow, or as a crumbling piece of parchment rooted firmly in the 1700s?

I’d say it’s worth the fight!