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A Tale of Two Justices in the Trump Era

Friday, October 6, 2017

Neil Gorsuch—the newest member of the court—could benefit from watching and emulating his mentor and former boss.

With a blockbuster Supreme Court term having begun this week, observers are closely watching two justices in particular. As rumors of Justice Anthony Kennedy’s retirement have waned since June, the profile of Justice Neil Gorsuch has risen—and not for the better.

With Gorsuch now on the court and beginning his first complete term, a full complement of nine justices is hearing disputes over one critical issue after another—cases addressing the right to vote, how politicians gerrymander legislative districts, gay and lesbian equality, cell phone privacy, and double jeopardy crowd the docket, along with other vital, though less visible, questions.

Of course, the seat now occupied by Gorsuch opened up during President Obama’s presidency, but Senate Republicans refused to give his nominee—Judge Merrick Garland—a fair shake. For Kennedy, Garland’s confirmation would have marked the end of his status as the court’s pivotal vote. Gorsuch, however, ensures the court retains its unofficial moniker as “The Kennedy Court,” with Kennedy once again firmly ensconced in the ideological middle between the four liberals and four conservatives, and likely to decide many of the sensitive and thorny questions mentioned above.

For example—in a dispute popularly known as “the cake baker case”—the justices will soon decide whether operators of private businesses may discriminate against customers on the basis of their sexual orientation.

The vindication of the principle of equality for gays and lesbians is perhaps the cornerstone of Justice Kennedy’s decades-long jurisprudence. In the 1990s, his commitment to personal liberty and dignity resulted in decisions that reversed the court’s previous rulings permitting anti-gay discrimination by states. Justice Kennedy’s opinions in this area culminated in the court’s recognition in 2015—on the strength of his pivotal fifth vote—that LGBT Americans have a constitutionally protected, equal right to marry. While the cake baker case is a new dispute presenting different (though clearly related) issues, there is little doubt that Justice Kennedy’s vote will determine the outcome.

With Kennedy poised to remain the Court’s fulcrum, Justice Gorsuch appears to be throwing his weight fully to the right, replicating Justice Antonin Scalia, his firebrand predecessor. During his short time on the court so far, Gorsuch has done nothing to dispel his reputation as a hardline conservative, even though at his confirmation hearings he repeatedly attempted to distance himself from President Trump, particularly the president’s attacks on an independent judiciary. Gorsuch answered a question from a member of the Senate Judiciary Committee by saying, “Senator, the independence and integrity of the judiciary is in my bones.” To another Senator he promised, “I do take seriously impartiality and the appearance of impartiality.”

Gorsuch, however, just gave a speech before a conservative group at the Trump International Hotel in Washington, D.C.—the president’s gleaming new hotel that has raked in more than $2 million in profits from foreign interests and other influence-seekers, after initially expecting a $2 million loss. Trump’s D.C. hotel is also a key factor in cases challenging the refusal of President Trump to abide by the Foreign Emoluments Clause, critical anti-corruption language in the Constitution that Gorsuch explicitly declined to discuss during his confirmation hearings because of that same pending litigation.

Gorsuch’s decision to speak at Trump’s Hotel—as well as his various appearances at campaign-style events with Republican Senate Majority Leader Mitch McConnell—makes his confirmation hearing promises ring disturbingly hollow today. As one expert explained, “This is not rocket science in the ethical world.” Even if there is no explicit rule prohibiting such conduct, Gorsuch speaking at Trump’s hotel “violates basic ethical principles about conflicts of interest.”

Such a decision stands in contrast to the career of Justice Kennedy, the man who Gorsuch once clerked for, and who swore him into office. I frequently disagree with Kennedy—his vote in the first challenge to the Affordable Care Act is a prime example—but his statesmanlike leadership on the court and commitment to civil discourse in the public square stands in sharp relief in the Trump era. The nation should be grateful that Kennedy was more immune to retirement pressure than perhaps Trump and his supporters bargained for, remaining the steward of his own jurisprudential legacy rather than entrusting it to a president with such little regard for the Constitution, the courts, and even common decency.

As the term commences, Justice Gorsuch, newest to the court, could benefit from watching—and emulating—his mentor and former boss.