Immigration and Citizenship

Neil Gorsuch’s first few months begin to reveal how nine-justice Supreme Court will develop

By Ryan Lovelace

The conclusion of Justice Neil Gorsuch’s abbreviated first term on the Supreme Court in April already has begun to reveal how the nine-justice court will develop.

Conservatives have roundly praised Gorsuch’s first two months on the high court, while liberals appear to fear that the worst is yet to come.

Leah Litman, a University of California, Irvine law professor and former law clerk to Justice Anthony Kennedy, said Gorsuch is exactly as the president billed him: “a firm adherent to originalism and textualism.”

“I think he’s competent. I think he is assertive,” Litman told the Washington Examiner. “He is likely to stake out his own position when he has them, which is as he has shown to be frequently, unlike some other justices who are willing to go along with the majority or find some compromise positions for common ground.”

Litman said she thinks Gorsuch’s addition to the high court means the justices are choosing to take more cases that could wind up narrowly decided than they were willing to do with an eight-member court.

Tom Goldstein, co-founder of SCOTUSblog who regularly argues cases before the high court, appears to expect similar results. At the American Constitution Society’s review of the Supreme Court term, Goldstein said he thinks “it’s extremely likely that over the next few terms, you will get historically high ideologically fractured 5-4 decisions.”

“I think that’s true in part because of the nature of the cases that are coming back, I mean there just wasn’t a lot of ideological excitement this term, but also I think that Justice Gorsuch brings a renewed, strong, conservative energy that actually with Justice Scalia had kind of passed for two reasons,” Goldstein said. “The first is that Justice Scalia, I think, kind of later in his tenure at the court was kind of less aggressive on some things. And also, in fact, when it came to things like the Fourth Amendment or the Confrontation Clause [Scalia] was actually joining together with the Left on a number of these issues, whereas with Justice Gorsuch I think you’re going to see a down-the-line, doctrinaire conservative to the right of Justice Alito, even.”

The Fourth Amendment protects against unreasonable search and seizure, while the Confrontation Clause in the Sixth Amendment allows defendants to confront witnesses against them.

The prospect that Gorsuch could prove himself the most “doctrinaire conservative” justice on the Supreme Court has liberal-leaning legal experts panicking. American Civil Liberties Union senior staff attorney Lee Rowland said at the ACS event that she thought Goldstein’s assessment was spot on.

“With Gorsuch activated, we’re going to see a totally different court and one where progressives may or may not find it the hospitable branch of government that it at least arguably is relative to the other two right now,” Rowland said. “We’re going to see if the courts remain a place where we as progressives can fight to ratchet up individual rights and liberties or whether we’re going to have to try a new tactic.”

Elizabeth Wydra, president of the liberal Constitutional Accountability Center, gave Gorsuch a flunking grade at the ACS event.

“The fact that Gorsuch would have allowed the entire travel ban to go into effect I think shows that he fails that first test of independence from Trump,” Wydra said, referring to Gorsuch’s decision to join Justice Clarence Thomas’ dissent wanting the full travel ban to take effect immediately.

The travel ban litigation, set to come before the high court in its October term, likely will provide the first venue for court watchers to compare Gorsuch’s judicial philosophy against the Trump agenda’s policy aims.

Regardless of how the travel ban case turns out, Goldstein said he expects Justices Stephen Breyer and Elena Kagan to form new coalitions with the high court’s right-leaning bloc as part of an effort to exert influence over the Supreme Court that appears to be moving rightward.

“I think one of the things that is going on is what we would call the left on the court is trying to be relatively tactical and accommodate what they think is the inevitable pivot of the court still further to the right,” Goldstein said. “And so you get some of these things like 7-2 decisions where you have a Kagan or Justice Breyer or both participating in the majority and maybe trying to build some sort of consensus.”

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