Federal Courts and Nominations

Immediate impact: Gorsuch could begin playing pivotal role on Supreme Court starting next week

By Robert Barnes

The new justice at the Supreme Court, Neil M. Gorsuch, is likely to have an immediate impact, weighing in as early as next week on whether to expand the breadth of the Second Amendment, considering how voting rights should be protected and perhaps casting the deciding vote in a major separation of church and state case.

The Senate voted 55-45 Friday to confirm Gorsuch, ending more than a year of bitter partisan conflict over the ideological balance of the nation’s highest court. Gorsuch will be sworn in Monday, allowing him to join the court for the final weeks of its term, which ends in June.

President Trump’s pick of Gorsuch to be the nation’s 113th justice will restore a conservative-leaning, Republican-nominated majority to a court that has either deadlocked or drifted to the left since the death of Justice Antonin Scalia in February 2016.

Gorsuch’s arrival will have no immediate effect on the majority that has edged the court in a more liberal direction of late, upholding affirmative action, striking down laws restricting access to abortion, and declaring same-sex marriage to be protected by the Constitution.

And it is unknowable exactly how the lifetime appointment of the 49-year-old Coloradan will affect the court in the decades to come. Gorsuch has a well-deserved reputation as a conservative on the Denver-based U.S. Court of Appeals for the 10th Circuit, even if he has not ruled on many of the high-profile issues that form the public’s image of the Supreme Court.

But there is no reason to believe he will not fit comfortably in the court’s right flank, and hopes of conservative activists who championed Gorsuch will be put quickly to the test.

Within the week, Gorsuch will join his new colleagues in considering whether to hear two lower court defeats being appealed by gun rights organizations. A case about whether business owners may refuse to offer their wedding services to same-sex couples awaits resolution. North Carolina wants the justices to take up and overturn a decision that tossed out its restrictions on voting as unconstitutional.

And heading toward the court is Trump’s revamped travel ban on refugees and certain immigrants, a case that Senate Democrats said will test Gorsuch’s independence from the man who chose him for the high court.

“One notable difference between this nomination and those past is that Trump had clear, stated litmus tests for his nominee,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center, which opposed Gorsuch’s confirmation.

“Gorsuch will have the opportunity almost immediately to demonstrate just how closely he fits within two of President Trump’s stated litmus tests for his high court nominee — guns and religion.”

It seems likely that Gorsuch holds the key to a long-delayed case that is the court’s most important of the term regarding separation of church and state. A church-affiliated school in Missouri is challenging that state’s refusal to let it participate in a grant program that provides playground safety materials.

Trinity Lutheran Church says religious institutions are unfairly excluded from such state programs. The state points to a clause in its constitution that says “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.”

The court accepted the case nearly 15 months ago, when Scalia was still alive. But it delayed scheduling the case for oral argument until now. That might be an indication that the court has been divided on the issue from the beginning, and needs a ninth vote to break the tie.

Gorsuch was an outspoken supporter of religious objectors in two cases involving the Affordable Care Act. In Hobby Lobby v. Sebelius and Little Sisters of the Poor v. Burwell, Gorsuch wrote that a requirement that employers provide contraceptive coverage for their employees could make the religious complicit in what they consider a sin.

The court is also considering a petition from a Denver baker who was found to have unlawfully discriminated against a gay couple by refusing to sell them a wedding cake.

Lower courts ruled that Jack Phillips, the owner of Masterpiece Cakeshop, violated Colorado’s public accommodations law, which prohibits refusing service to customers based on factors such as race, sex, marital status or sexual orientation.

The Supreme Court has listed the case as “under consideration” for weeks, without announcing whether it was accepting the case or turning it down.

That has led to speculation that the justices have decided not to take the case and one of the conservative justices is writing a dissent against that decision. But it could also be that three justices want to take the case and are hoping Gorsuch would provided the fourth vote required to accept a case.

“It seems likely, in light of his past votes in cases like the Little Sisters and Hobby Lobby that Gorsuch would be a vote to grant in that case,” said John Elwood, a Washington lawyer who closely watches the court’s deliberations on accepting cases.

On the other hand, Elwood said, “It’s hard to predict how Gorsuch might vote on whether to take controversial issues like the gun cases and voter-ID cases.”

Two controversial gun issues await at Gorsuch’s first private conference with his new colleagues next Thursday, when the court meets to decide whether to accept a long list of cases for the term that begins next fall.

The most important is a petition from gun rights activists asking the court to find for the first time that the Second Amendment right to keep a gun for self-defense extends to carrying firearms outside the home.

In cases from California, the full U.S. Court of Appeals for the 9th Circuit ruled that it did not. “Any prohibition or restriction a state may choose to impose on concealed carry — including a requirement of ‘good cause,’ however defined — is necessarily allowed by the [Second] Amendment,” it said.

A strongly worded dissent said “any fair reading” of the Supreme Court’s 2008 decision finding a constitutional right to gun ownership for self-defense “compels the conclusion that the right to keep and bear arms extends beyond one’s front door. Like the rest of the Bill of Rights, this right is indisputably constitutional in stature and part of this country’s bedrock.”

A second case involves whether those convicted of certain crimes can indefinitely be barred from possessing firearms.

On a different subject, the court must soon decide what to do about North Carolina’s request that the court review a decision striking down its voting law. The U.S. Court of Appeals for the 4th Circuit said the law was unconstitutional because it was drawn to “target African Americans with almost surgical precision.”

The case already has divided the Supreme Court: Last August, the justices split 4 to 4 on whether the decision should be stayed so that the law would be in effect for the November elections. The lack of a fifth vote meant the restrictions would not govern voting in last fall’s election.

Now, the state’s Republican legislative leaders want the court to consider the merits of the lower court’s decision. But the state’s newly elected Democratic governor wants to withdraw the appeal. The Supreme Court will have to sort out how the case proceeds.

And Gorsuch may have an impact on cases that already have come before the court. Normally when the court is deadlocked, it issues a one-paragraph statement that affirms the decision of the lower court it was considering without setting a national precedent.

This term, however, there may be cases that the eight justices have already considered where they reached an impasse but decided to hold back any announcement awaiting Gorsuch’s confirmation. In that scenario, the court would order new oral arguments so that Gorsuch could join the deliberations.

One case that seemed to divide the justices at oral argument, for instance, concerned whether the Mexican parents of a boy killed in a cross-border shooting could sue the Border Patrol agent who fired the shot.

Until there is another change on the court, Gorsuch will likely reestablish the basic arithmetic of the Supreme Court under Chief Justice John G. Roberts Jr.: four consistent liberal justices, four fairly consistent conservatives and Justice Anthony M. Kennedy providing the deciding vote when there is a deadlock.

But Wydra said the addition of Gorsuch does more than simply replace Scalia with a like-minded justice.

“Substituting Gorsuch for Scalia extends the conservative life of that seat for another few decades,” she said.


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