Federal Courts and Nominations

How Neil Gorsuch could impact current and future Supreme Court cases

By Richard Wolf

President Trump’s choice to replace the late Justice Antonin Scalia on the Supreme Court could have an immediate impact in areas ranging from labor rights and environmental protection to the overall power of executive agencies.

As federal appeals court Judge Neil Gorsuch, 49, began making the rounds on Capitol Hill on Wednesday, just hours after Trump announced his nomination, groups on the left and right were trying to determine what impact he would have if he’s confirmed.

By restoring the 5-4 conservative balance lost when Scalia died nearly a year ago, Gorsuch likely would give labor union opponents the fifth vote they were counting on in a California case last year that threatens the ability of public employee unions to collect dues from non-members. It won’t be long before a similar case is back before the court.

And just before his death, Scalia provided the fifth vote to block the Obama administration’s “Clean Power Plan” from being implemented while states and industries challenged it in court. Gorsuch would restore that fifth vote — though it may not be needed if the Trump administration backs away from the regulations on coal-fired power plants pending at the U.S. Court of Appeals for the District of Columbia Circuit.

Those are but two legal battles that Gorsuch could influence if he gets on the court in time for its 2017 term, which begins in October. That appears likely under one of two scenarios: If at least eight of the Senate’s 48 Democrats and independents vote for him, or if Republicans change the rules to require only a simple 51-vote majority.

But the Coloradoan, who has served a decade on the U.S. Court of Appeals for the 10th Circuit, could have a more sweeping impact even though he would replace the like-minded Scalia. Unlike the late justice, he has argued that judges should take back at least some of the authority they have ceded to federal agencies that enforce labor, environmental and anti-discrimination laws.

Past Supreme Court precedents, Gorsuch wrote in an immigration case last year, “permit 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.”

Only Justice Clarence Thomas firmly shares that view on the current Supreme Court, but Gorsuch could help persuade others. That’s especially true during a Republican administration, when the court’s liberals might seek to counter actions such as Trump’s executive order temporarily barring immigrants from seven Muslim-majority nations.

“This is an area where he could make a dramatic difference in the court,” says Erwin Chemerinsky, a constitutional scholar at the University of California-Irvine School of Law.

In others areas such as abortion, affirmative action and gay rights, Gorsuch’s confirmation would not produce an immediate shift because Justice Anthony Kennedy has sided with liberals in key cases. But that’s little consolation to abortion rights, civil rights and LGBTQ advocates concerned about his longer-term impact.

Gorsuch has not ruled directly on abortion. In a book on assisted suicide he said “the intentional taking of human life by private persons is always wrong.” That has encouraged abortion opponents, who note that Trump promised evangelical Christians he would appoint judges who oppose the court’s 1973 Roe v. Wade decision legalizing abortion.

“Even if his vote would not necessarily be different than Scalia’s … you would be going further down that path toward overturning Roe,” says Elizabeth Wydra, president of the liberal Constitutional Accountability Center, which has not taken a position on Gorsuch’s nomination.

Gorsuch’s best-known decisions have come in two sets of cases against the Obama administration’s requirement that health insurance plans offer free coverage for contraceptives. He ruled for the craft store chain Hobby Lobby and sided with the religious non-profit Little Sisters of the Poor in their efforts to sidestep the mandate because of religious objections.

The Supreme Court ruled 5-4 for Hobby Lobby in 2014, but with Scalia gone, it sent several cases involving religious non-profits back to federal appeals courts in hopes of reaching a compromise. If that proves impossible, Gorsuch could tip the balance in a future Supreme Court case.

If the Senate acts quickly on Gorsuch’s nomination — something it seldom does, even in less divisive times — he could be confirmed in time to participate in oral arguments in April, the last of the court’s 2016 term. That could give him sway in cases that have not been scheduled because of the risk of 4-4 votes.

In one case, a Missouri church is challenging the state’s refusal to consider its application for playground resurfacing funds because of church-state separation. Since Gorsuch has ruled in favor of religious freedom before, his could be the decisive vote in the church’s favor.

In another case, a Virginia school district is challenging Obama administration guidelines requiring that schools allow transgender students to use bathrooms based on how they self-identify, rather than by birth gender. Unless the Trump administration rescinds the guidelines, Gorsuch could produce a fifth vote in favor of the school district.

But both conservative and liberal groups are more focused on the long term — since Gorsuch could be on the court for three or four decades.

“The stakes are enormous,” Chemerinsky says.


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