As the first Supreme Court term including Justice Neil Gorsuch has come to an end, more and more observers are noting that Gorsuch has clearly lived up to right-wing hopes by emerging as one of the Court’s most conservative justices on issues ranging from the death penalty to LGBTQ rights to church-state separation. On two issues in particular, despite his defenders’ claims during his confirmation hearings, Gorsuch has already become one of the most far-right justices on the Court: deference to presidential authority, and money in politics and elections.
And as early as this year, Gorsuch has the potential to help do enormous damage on these and related issues.
As Donald Trump’s dangerous assertions of presidential authority on immigration and other matters unfolded during Gorsuch’s hearings, senators expressed concern as to whether a Justice Gorsuch would stand up independently and be willing to take action against abuse of such executive branch authority. Gorsuch’s defenders insisted that this would not be a problem. Look at his statements to senators about Trump’s criticisms of federal judges, they asserted. And his record of disagreeing with federal executive branch agencies and with judicial doctrines of deference to such agencies, it was claimed, meant that he would not defer to executive authority and would stand up against it when necessary.
We were not fooled.
Gorsuch’s tepid statements that Trump’s attacks on the judiciary were “disheartening” and “demoralizing” said nothing about his willingness to stand up to abuses of presidential authority. Far more important, critics correctly pointed out, was Gorsuch’s record. Yes, it is true that Gorsuch has been skeptical about the authority of federal regulatory agencies to interpret laws and issue regulations a principle that Rep. John Conyers has called crucial to the ability of such agencies to “protect public health and safety.” But there is another very different kind of executive authority: the independent authority of executive branch officials to themselves take action that may conflict with individual rights.
Gorsuch’s record before coming to the Supreme Court had been to defer to that kind of executive authority, whether exercised by police officers or a state’s governor, and not to question it as a judge, or allow other judges to do so.
For example, in one case with an eerie resemblance to aspects of the Trump anti-Muslim travel and immigration ban, Judge Gorsuch argued for deferring to the governor of Utah who sought to unilaterally cut off funding for Planned Parenthood. A panel of three judges on the 10th Circuit (not including Gorsuch) granted an injunction against the governor of Utah for defunding Planned Parenthood. The full 10th Circuit decided not to rehear the decision, but Judge Gorsuch strongly dissented and argued for deferring to the governor.
An important issue in the case was the governor’s intent in cutting off funding. On that issue in particular, Gorsuch argued for deferring to the governor on what he told the trial court his motive was, stating that such deference was appropriate in light of the “comity” that should be shown to states and their elected officials. Gorsuch would have ignored the fact that Governor Herbert had earlier made admissions that, the court explained, showed a completely different and unlawful motive.
A very similar argument has been taking place on the Trump travel ban, with lower courts finding that despite the neutral statements in Trump’s executive orders themselves, his anti-Muslim statements both before and after becoming president show that the ban violates the Constitution by discriminating on the basis of religion, and halting the travel ban. The Supreme Court has partially stayed the lower courts’ decisions, allowing part of the ban to go into effect, and the case will be argued this fall.
But Gorsuch has already tipped his hand. Justices Thomas, Alito and Gorsuch dissented from the decision partly staying the lower courts’ orders, claiming that the Court should have put a complete halt to the lower courts’ rulings and allowed the ban to go fully into effect. Their dissent argued that the government had “made a strong showing” that it is likely to succeed on the merits and that the lower court orders against the ban “will be reversed”—perhaps in part because of the “comity” rationale that Gorsuch argued for in the Utah case.
The travel ban case will be one of the Court’s most important this fall and will be closely divided. Gorsuch has clearly shown what side he will be on, and that vote could be crucial to the case’s outcome.
As predicted, Gorsuch is also a threat when it comes to money and politics and other election-related issues. Right-wing decisions by a 5-4 Court majority in Citizens United and other cases have opened the floodgates for unlimited and undisclosed political spending that have already harmed our democracy. Gorsuch’s track record clearly indicated that he would favor even “fewer restrictions on political spending by corporations and the wealthy, not more.” This record included an opinion in one case that suggested he might well be willing to strike down bans on corporate contributions to candidates, going even further than Supreme Court rulings invalidating limits on independent corporate campaign expenditures.
Sure enough, in his short time on the Supreme Court bench, Gorsuch has unfortunately proven these concerns to be justified.
In Republican Party of LA v. FEC only Justices Gorsuch and Thomas dissented from a decision to summarily affirm a three-judge court’s decision that upheld the “soft money ban” in the McCain-Feingold campaign finance law that sets limits on big money gifts to political parties. As one observer noted, the dissent put Gorsuch “squarely on the side of conservatives and Republican lawyers who believe that limits on political money are unconstitutional.”
In 2017-18, the Court is set to hear a case on another election-related issue that has seriously harmed our democracy: hyper-partisan redistricting. A lower court found that Republican gerrymandering of district lines for Wisconsin state Assembly elections was so skewed to help elect Republicans that it violated the Constitution, and the Supreme Court’s determination to review the decision could make it the “most important election law case in years if not decades.”
The issue of whether the courts can properly consider the question of hyper-partisan redistricting has closely divided the Supreme Court. When Justice Scalia was on the Court, he and three other very conservative justices argued in Vieth v. Jubelirer that the Court should not get involved in the issue, while the four moderates explained that it was proper for the Court to consider taking action, with Justice Kennedy in the middle. He recognized the corrosive effects of partisan redistricting, and held the door open for appropriate and judicially manageable standards in the future.
With the Wisconsin case to be heard by the Court in 2017-18, that future is now.
But Gorsuch had already amassed a troubling record on this issue when he was nominated. In a dissent in an unrelated case, Gorsuch specifically referred to the Court’s divided decision in Vieth and claimed (erroneously) that it “put to bed” the question of whether courts could properly review the constitutionality of hyper-partisan redistricting and decided that they could not. As some pointed out at the time Gorsuch’s suggestion that he already agrees with the right-wing justices in Vieth who claimed that the courts should not be reviewing this issue at all , is extremely disturbing—particularly in light of the Wisconsin case.
Unfortunately, these concerns are more than just a “we told you so.”
Gorsuch’s record before his confirmation made clear that he has dangerous views on democracy issues that will come before the Supreme Court this year—like presidential power, money in politics, and redistricting. And as senators consider future Trump nominations to the federal courts, they must not accept the blithe and bland assurances on which Republican senators relied to confirm Gorsuch. They must carefully scrutinize and base their votes on the actual records of present and future Trump nominees.
Preserving our rights and liberties, and our democracy, demands no less.
Elliot Mincberg is a senior fellow at People For the American Way.