Just days after stealing Merrick Garland’s Supreme Court seat, Neil Gorsuch is channeling Antonin Scalia. On April 20, the newly minted associate justice cast his first ballot. Gorsuch provided the fifth vote that allowed Arkansas to execute a likely innocent man.
Casting the Deciding Vote for Death
For 24 years, Ledell Lee maintained his innocence and requested a DNA test that might have proven it. But five members of the high court, including Gorsuch, denied Lee’s request because of Arkansas’s supply of midazolam, required for Lee’s lethal injection, was fast approaching its expiration date.
“In my view, that factor, when considered as a determining factor separating those who live from those who die, is close to random,” Justice Stephen Breyer penned in dissent.
The New York Times editorial board wrote,
“Neil Gorsuch held the power of life and death in his hands... His choice led to Ledell Lee’s execution and gave the nation an early, and troubling, look into the mind-set of the high court’s newest member.”
Diluting a Sixth Amendment Right
Gorsuch also showed his true colors during one of his first oral arguments on the Court. During Kentel Weaver’s murder trial, Weaver’s mother and others supporting him were denied access to his trial. The closure violated Weaver’s Sixth Amendment right to a public trial.
It is well established that the denial of a public trial is a “structural error” requiring reversal of a conviction.
At oral argument, Gorsuch suggested the Court apply a “triviality exception” to the Sixth Amendment public trial right and find that the courtroom closure was trivial. Then it would not constitute a structural error requiring reversal of Weaver’s conviction. Although a lower federal court applied that exception, the Supreme Court held in 2010 that the closure of a courtroom constitutes a denial of the Sixth Amendment public trial right, which is a structural error requiring automatic reversal.
So Gorsuch is already proposing the high court water down one of defendants’ most basic rights.
A Rude “Textualist” Like Scalia
On his first day of argument at the high court, Gorsuch sounded a lot like Scalia. The “textualist” monopolized questioning of the lawyers and insulted them.
In three different cases, Gorsuch intoned Scalia’s mantra: just look at the “plain text of the statute.” After citing prior cases that supported employees suing for discrimination, a lawyer said, “We’re not asking the Court to break new ground.” Gorsuch then interjected, “No, just to continue to make it up.” In another case, when an attorney didn’t give Gorsuch a clear answer to his question, the justice declared sarcastically, “That’s not a trick question.”
We cannot count on Gorsuch to uphold the rights of those harmed by corporate malfeasance.
Weakening the Wall Between Church and State
At the argument in Trinity Lutheran Church of Columbia v. Comer, which involves the separation of church and state, Gorsuch appeared to take the same position as six other justices. All but Justices Ginsburg and Sotomayor seemed swayed by the church’s claim that receiving state funds for its playground resurfacing did not violate the First Amendment or the Equal Protection Clause.
“But avoiding direct payments of government cash to churches is central to protecting religious freedom, a concept America’s founders understood all too well,” according to the Times editorial board. “And with Justice Gorsuch now on the Court, advocates for the recently evolved notion of religious freedom are feeling a lot better about their chances.”
Indeed, Alliance Defending Freedom (ADF), the Christian organization representing Trinity Lutheran in the Supreme Court, called Gorsuch “a natural successor to Justice Scalia.”
ADF also represents the baker in Colorado who refused to make a wedding cake for a gay couple, citing his religious beliefs. In light of Gorsuch’s lower court concurrence in the Hobby Lobby case, upholding a corporation’s refusal to provide its employees with contraception coverage on religious grounds, he will likely favor the baker if and when that case reaches the high court. Gorsuch wrote in Hobby Lobby, “It is not for secular courts to rewrite the religious complaint of a faithful adherent.”
While on the appellate court, Gorsuch dissented twice when the majority struck down a county’s display of the Ten Commandments and a state’s erection of a cross on the highway to commemorate state troopers.
Voting Rights in Jeopardy
This term, which concludes at the end of June, the Court will also decide Cooper v. Harris, a voting rights case. The 4th US Circuit Court of Appeals found provisions of a North Carolina election law unconstitutional. These provisions eliminated early and same-day voter registration, and included a requirement that voters provide photo ID at the polls. The appellate court concluded that GOP leaders had drafted these voting restrictions after seeing data indicating Black voters would be most affected by them. The 4th Circuit noted those provisions deliberately “target African-Americans with almost surgical precision” in order to suppress their turnout at the polls.
Although Gorsuch doesn’t have a judicial track record on voting rights, there are some worrisome signals. For example, he has the wholehearted approval of Hans von Spakovsky. Von Spakovsky is a notorious opponent of voting rights. He has been a leader in perpetuating the myth of voter fraud, which is often used to justify voter suppression. Von Spakovsky is a member of the Heritage Foundation, a group that included Gorsuch’s name on the list of politically acceptable judges from which Donald Trump made his selection. After Trump nominated Gorsuch for the high court, von Spakovsky said he was “the perfect pick.”
Gorsuch and von Spakovsky worked in the George W. Bush Department of Justice at the same time. After Bush nominated von Spakovsky to the Federal Election Commission, Gorsuch wrote in an email, “Good for Hans!” And when von Spakovsky indicated he would participate in a Justice Department “Ballot Access and Voter Integrity Conference,” Gorsuch sent him an email: “Sounds interesting. Glad to see you’re doing this. I may try to attend some of it.”
Gun Control and the NRA’s Love Affair With Gorsuch
If the Supreme Court justices decide to hear Peruta v. California, that state’s law requiring gun owners to demonstrate “good cause” before being issued permits to carry a concealed weapon in public will be in jeopardy. Good cause can be shown when there is a clear and present danger to the applicant or the applicant’s spouse, family or employees. The 9th Circuit Court of Appeals upheld California’s concealed carry law, one of the strongest in the country.
Gorsuch wrote in 2012, “The Second Amendment protects an individual’s right to own firearms and may not be infringed lightly.” Gorsuch also determined that a Colorado police officer who killed a 22-year-old man with a stun gun did not use excessive force.
Moreover, the National Rifle Association reportedly spent $1 million on ads advocating Gorsuch’s confirmation while the Senate was considering his nomination.
There is a very real danger he will defer to executive power that tramples on civil liberties and readily puts people to death.
Giving Corporations a Pass for Human Rights Violations
Next term, the high court will hear the case of Jesner v. Arab Bank and decide whether a corporation can be sued under the Alien Tort Statute. That statute, enacted in 1789, confers jurisdiction on federal courts to entertain lawsuits filed by noncitizens for violations of international law.
In the case, Arab Bank served as a financial intermediary, allowing designated terrorist organizations to conduct campaigns of violence against innocent civilians. In a decision contrary to the rulings of every other circuit, the 2nd Circuit Court of Appeals dismissed the suit filed by Jesner and others who claimed they and their family members were victims of terrorism. The appellate court concluded that corporations, including Arab Bank, cannot be sued under the Alien Tort Statute.
But the failure to redress corporate violations of international law runs afoul of the U.S. obligation to provide a meaningful remedy for such abuses. That obligation is enshrined in the International Covenant on Civil and Political Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination. The United States has ratified both of these treaties, making them part of US law under the Constitution’s Supremacy Clause.
We cannot count on Gorsuch to uphold the rights of those harmed by corporate malfeasance. “During his time in private practice, Judge Gorsuch represented corporate interests and criticized those who sought to vindicate their rights using class-action lawsuits,” the nonprofit judicial watchdog group Alliance for Justice noted. “He sought to make it more difficult to hold accountable corporations that act illegally and harm the American people.”
Trump’s Muslim Ban: Defer to Executive Power?
The constitutionality of Trump’s Muslim Ban is now pending in both the 9th and 4th Circuit Courts of Appeals. The issue will almost certainly be considered by the high court next term.
When Gorsuch worked in the Bush Justice Department, he handled all “terror litigation.” He made arguments that would facilitate the administration’s use of torture and warrantless surveillance, and prevent Guantánamo detainees from challenging their detention by habeas corpus. Given this record, it seems likely that Gorsuch would be receptive to the Muslim ban. Jennifer Daskal, Just Security’s founding editor, predicted,
“He could end up being the decisive vote in a range of future cases that involve executive branch policies that push at, or cross, the line of legality ― defended based on expansive claims of unreviewable executive authority in the arena of national security.”
A Reliable Vote Against Justice
We can say with confidence that Gorsuch will side with the religious right against reproductive rights and with corporations against workers. There is a very real danger he will defer to executive power that tramples on civil liberties and readily puts people to death.
Let us hope that Trump does not have the opportunity to make another Supreme Court appointment.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild and deputy secretary general of the International Association of Democratic Lawyers. Her books include The United States and Torture: Interrogation, Incarceration, and Abuse; Cowboy Republic: Six Ways the Bush Gang Has Defied the Law; and Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Follow her on Twitter.
Copyright Truthout. Reprinted with permission.