People For the American Way

GOP Has Already Given Americans Grounds to Reject Gorsuch: “He’s Like Scalia”

News and Analysis

When then-candidate Donald Trump outsourced his selection of potential Supreme Court justices to far right organizations, their entire movement was thrilled.  By picking their own justice, they could get what they’d long made clear they wanted most: a justice like Antonin Scalia.

Given the late justice’s three decades on the Supreme Court, “like Justice Scalia” is not just some nebulous term.  His record gives a very definite meaning to the term and to the policy goals desired by the far Right.

Scalia’s Record: Empowering the Powerful, Enabling Discrimination, Undermining Democracy

Justice Scalia’s legal legacy has touched nearly every aspect of people’s lives, usually to our detriment.  Here are just a few of the cases that explain why corporate and other far right interests idolize the late justice:

Voting Rights
Scalia voted to gut the heart of the Voting Rights Act, which had kept countless disenfranchisement plans from ever going into effect.  With that voting rights protection eliminated, conservatives have been able to adopt discriminatory laws and procedures targeting African American and Latino communities likely to vote Democratic, making it harder for them to vote.  (Shelby County v. Holder, 2013)

Abortion Rights
Scalia opposed the right to have an abortion but never had enough votes to completely overrule Roe v. Wade.  He claimed that Roe “created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act.”  (Planned Parenthood v. Casey, 1992)

LGBTQ Rights
Scalia’s dissents in cases recognizing LGBTQ rights were the judicial equivalent of a Donald Trump campaign rally: venomous, paranoid, divisive, and contemptuous.  For instance, when the Court struck down the Defense of Marriage Act, he accused the majority of seeing  opponents of marriage equality as “enemies of the human race,” “enem[ies] of decency,” “monsters,”  and “unhinged members of a wild-eyed lynch mob.”  (Windsor v. United States, 2013).  In an earlier case, he condemned LGBTQ Coloradans and equality supporters as a small yet wealthy population concentrated in cities and who had “disproportionate political power,” who opposed the traditional morality of the majority, and who had brought their quest for “social endorsement” from New York, San Francisco, LA, and Key West to communities in Colorado.  (Romer v. Evans, 1996)

Money in Politics
Scalia was part of the Roberts Court’s crusade to nullify Americans’ efforts to impose reasonable limits on money in politics, including corporate money.  He wrote that “to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy.”  (Citizens United, 2010)

Women’s Rights
When the Court struck down the Virginia Military Institute’s males-only admission policy, only Scalia dissented.  With a seemingly nostalgic look backward to the good old days (good for men, that is), he wrote that “[i]n an odd sort of way, it is precisely VMI’s attachment to such old fashioned concepts as manly ‘honor’ that has made it, and the system it represents, the target of those who today succeed in abolishing public single sex education.” (United States v. Virginia, 1996)

Racial Justice
Sadly, in the real world, race matters—often with fatal consequences.  But Justice Scalia acted as if centuries of slavery and discrimination had no effect today, concluding that race cannot be considered as part of a remedy for past racial discrimination.  He wrote that “government can never have a ‘compelling interest’ in discriminating on the basis of race in order to ‘make up’ for past racial discrimination in the opposite direction. . . .  To pursue the concept of racial entitlement — even for the most admirable and benign of purposes — is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege, and race hatred.  In the eyes of government, we are just one race here.  It is American.”  (Adarand Constructors, Inc. v. Pena, 1995)

Job Discrimination
Scalia could always be counted on to interpret Title VII in ways to make it hard for victims of job discrimination to vindicate their rights.  In one 5-4 opinion, Scalia ruled in favor of Walmart and against its women workers, tens of thousands of whom sought to bring a class action against the company on the basis of widespread gender bias in the company.  Scalia wrote that the Walmart women employees had “little in common but their sex and this lawsuit.”  (Wal-Mart, Inc. v. Dukes, 2011)

The Environment
Scalia was no friend to laws that protect our nation from devastating environmental damage. When he wrote a plurality opinion limiting who can file an environmental lawsuit, Justice O’Connor joined a dissent that condemned his opinion as “a slash-and-burn expedition through the law of environmental standing.” (Lujan v. Defenders of Wildlife, 1992)  He wrote another plurality opinion that would have severely limited what counts as “the waters of the United States” in the Clean Water Act, placing a substantial obstacle to the EPA’s efforts to fulfill the law’s goals to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters”  Four dissenting justices characterized Scalia’s opinion as “antagonism to environmentalism.”  (Rapanos v. United States, 2006)

Slamming the Courtroom Door Shut
Scalia voted with the conservative Roberts Court’s frequent rulings allowing large corporations to block individuals and small businesses whose rights have been violated from joining together and having their day in court, and instead force them into corporate-friendly one-on-one arbitration.   Class action lawsuits are often the only way to hold corporations accountable for unlawfully taking small amount of money from millions of people.  They’re also often the only way that the victimized parties can collect the vast sums necessary to make a case in a complex area like antitrust.  These cases provide a roadmap for corporations seeking to cheat customers and not be held accountable.  In an antitrust context, Justice Kagan pointed out that Scalia’s majority opinion empowered “a company [to] use its monopoly power to protect its monopoly power, by coercing agreement to contractual terms eliminating its antitrust liability.”  (American Express Co. v. Italian Colors Restaurant, 2013)

GOP Leaders Promise More of the Same with Neil Gorsuch

As shown above, Scalia’s legacy is that he empowered the powerful and afflicted the afflicted.  His rulings from the bench have harmed millions upon millions of people in multiple ways.

Many fear that, if confirmed, Neil Gorsuch would be another Scalia on the nation’s highest court.  But don’t take our word for it: It’s Gorsuch’s supporters who are making this promise/threat to the American people:

  • Then-Candidate Donald Trump: “I am looking to appoint judges very much in the mold of Justice Scalia.”  (Politico, 10/10/16)
  • Vice-President Mike Pence: “It should be abundantly clear that Judge Gorsuch is indeed a worthy successor to Justice Antonin Scalia.  He is cut from the same cloth.”  (CNN, 2/4/17)
  • Vice-President Mike Pence: Gorsuch “is an originalist and a textualist who will pick up right where Justice Scalia left off.”  (CNN, 2/4/17)
  • Senator Orrin Hatch: “Utahns should take heart that the man who will replace Scalia will be just as committed to the Constitution as his predecessor.”  (Salt Lake Tribune, 1/31/17)
  • Comm. Chairman Chuck Grassley: “To me, following the law wherever it may lead is perhaps the most important attribute for a Supreme Court Justice to possess.  That principle guided Justice Scalia’s decision making, and it’s also how Judge Gorsuch has said judges should approach the law.”  (Grassley Floor Statement, 2/1/17)
  • Senator Ted Cruz: “More importantly, though, he also mirrors Justice Scalia in that he has a proven track record of honoring the Constitution, following the text of the law, and refraining from imposing his policy preferences from the bench.”  (Cruz Press Release, 1/31/17)
  • Senator John Cornyn: “I’m confident that Judge Gorsuch will follow Justice Scalia’s example, adhering to the Constitution and fairly applying the law on behalf of all Americans.”  (Cornyn Press Release, 1/31/17)
  • Senator Mike Lee: “[H]e decides each case based on what the law says rather than based on the results that he or someone else want, that’s exactly what we need on the Supreme Court.  That’s exactly the kind of judge we need to carry out the legacy of Antonin Scalia.”  (Fox News, 2/2/17)
  • Sean Spicer: “Like Justice Scalia, the cornerstone of Judge Gorsuch’s judicial philosophy is fidelity to the text.”  (WH Press Briefing, 2/1/17)
  • Carrie Severino of the Judicial Crisis Network: Gorsuch is “very committed to the same constitutional principles that animated Justice Scalia: looking at the text, looking at the structure of the Constitution and its history and [understanding] how important that is to guaranteeing our freedoms” (Washington Times, 1/31/17)
  • The National Review: “President Trump’s nominee to the Supreme Court will be Neil Gorsuch, a well-respected conservative whose legal philosophy is remarkably similar to that of Antonin Scalia.”  (National Review, 1/31/17)
  • John Malcom of the Heritage Foundation: “Gorsuch is a judge cut from the same mold as Scalia. He approaches important cases by studying the text and structure of the Constitution…” (Heritage Foundation, 2/22/17)
  • Family Research Council: “It is crucial to have a justice in the mold of Justice Scalia, who would almost certainly have ruled for the religious nonprofits in that case [Zubik v. Burwell]. Thankfully, Judge Gorsuch clearly fits the mold on this issue, as a review of his religious liberty record will show.” (FRC Report – Judge Neil Gorsuch: The Case for Confirmation, 3/2017)
  • Leonard Leo of the Federalist Society: “I think frankly he is closest to Justice Scalia.”  (MSNBC, 2/1/17)
  • Edward Blum of the American Enterprise Institute: “Judge Neil Gorsuch will bring a much needed Western sensibility to the Supreme Court. It is widely recognized that his judicial philosophy closely mirrors that of Justice Antonin Scalia.” (AEI Press Release, 2/1/17)
  • Faith and Freedom Coalition: “He is exactly who the nation needs as a Supreme Court Justice in the model of the late Antonin Scalia.”  (Faith & Freedom Coalition Statement, 1/31/17)
  • Carol Tobias of the National Right to Life: “We are heartened that Judge Gorsuch appears to share Justice Scalia’s view that federal judges are constrained to enforce the text and original intent of constitutional provisions.” (WorldNetDaily, 1/31/17)
  • Marjorie Dannenfelser of the Susan B. Anthony List: “President Trump has made an exceptional choice in nominating Neil Gorsuch to carry on the legacy of the late Antonin Scalia on the Supreme Court.” (SBA Press Release, 1/31/17)

Conclusion

So we know that Justice Scalia’s approach to the law has harmed everyday Americans in a variety of ways, while ensuring that more power go to the most powerful corporations and individuals.

And Judge Gorsuch’s strongest supporters assure us that he’ll treat us the same way Scalia did. In fact, in some important ways, Gorsuch is further to the right than Scalia himself.

The conclusion isn’t hard to reach:  Gorsuch should not be confirmed.