To: Editorial Boards and Interested Parties
From: Elliot Mincberg, Senior Fellow, People For the American Way
Date: April 5, 2018
Re: Gorsuch’s First Year on the Supreme Court: An Unhappy Anniversary for Our Rights and Liberties
Nearly one year ago—on April 10, 2017—Neil Gorsuch was sworn in for a lifetime appointment as the Supreme Court’s newest justice. His first year on the Court has more than fulfilled the expectations of Donald Trump, who nominated him, and the right-wing senators who supported him. Far from being a fair-minded constitutionalist, Gorsuch has proven to be a narrow-minded elitist who consistently votes in favor of corporations and the powerful, acting to roll back protections for workers, consumers, LGBTQ individuals and other marginalized communities and to advance the anti-democratic influence of big money in our elections.
As Supreme Court observer Dahlia Lithwick has explained, Gorsuch is “far to the right” of even Antonin Scalia, whose seat he now fills, and most closely resembles right-wing activist Clarence Thomas on the current Court.
On his very first day hearing arguments on the Court last April, Gorsuch participated aggressively in questioning on a case involving the rights of federal employees, Perry v. Merit Systems Protection Bd., and suggested what Justice Kagan called a “revolution” in how to handle cases where employees bring claims under both federal anti-discrimination and civil service laws. In fact, when the case was decided, seven members of the Court agreed that a lower court could properly consider both types of claims, but Gorsuch (joined only by Clarence Thomas) dissented and argued the narrow proposition that the employee’s only option was a deferential review of an administrative agency ruling against him, a position that would have harmed employee rights and was arguably to the right of Scalia on statutory interpretation.
Other Gorsuch opinions and votes during the 2016-17 term show even more clearly his damaging effect on the Court. He was the deciding fifth vote in a ruling upholding the death penalty in a troubling case, McGehee v. Hutchinson, in which the man who was executed claimed he was innocent and that his lawyer was drunk during his trial. Gorsuch also cast the deciding vote in a ruling in California Public Employees’ Retirement System v. ANZ Securities. Inc. that limited the time that investors have to decide whether to join class actions in securities cases. Justice Ginsburg explained in dissent that the decision would harm “the investing public” and “gum up the works” of class action litigation by giving companies an incentive to slow down proceedings and thus effectively limit the number of people who join the case.
Even more disturbing were some of his dissents and other opinions. Specifically:
- Gorsuch dissented in a troubling case involving LGBTQ rights. In Pavan v. Smith, six justices summarily reversed the Arkansas Supreme Court’s refusal to require a female spouse to be listed along with a child’s mother on a birth certificate, since that refusal clearly violated equal marriage rights under the Obergefell But Gorsuch dissented, joined by Thomas and Alito, claiming there were “rational reasons” for the state’s actions.
- Gorsuch joined with Thomas and Alito in dissenting from a decision in Trump v. International Refugee Assistance Project to partially stay lower court rulings striking down the Trump anti-Muslim travel ban while the Court considers the issue. According to Gorsuch and the other dissenters, the travel ban should have been allowed to take full effect because the government had “made a strong showing” and the decisions against the ban likely “will be reversed”—a clear clue as to how they will vote in the cases later this year.
- Gorsuch and Thomas dissented from a decision in Republican Party of Louisiana v. FEC to summarily affirm a lower court’s determination 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 right-wing advocates who believe “that limits on political money are unconstitutional.”
- Gorsuch joined a Thomas dissent from the Court’s determination in Peruta v. California not to review an appellate court ruling that upheld a California law requiring a local law enforcement permit to carry a concealed handgun in public. According to the dissent, the law “degrades” the Second Amendment.
- Gorsuch wrote a separate concurring opinion in an important church-state case, Trinity Lutheran Church v. Comer, in which the Court recognized a limited exception to the principle that taxpayer funding should not go to help support churches. Although the Court’s ruling was limited to government grants for playground equipment and not for religious uses of government funding, Gorsuch argued for a “much broader view” that advocates saw as “opening the door” to direct public funding of religious schools.
Even though the Supreme Court has not yet issued decisions in most of the significant cases it will review this term, Gorsuch’s record continues to be troubling. Shortly before the Court began its work last October, Gorsuch was harshly criticized for a “victory lap” speaking tour of Kentucky with prominent supporter and Senate Majority Leader Mitch McConnell, and for speaking to a conservative group at the Trump International Hotel in Washington, both of which raised serious questions about his independence from Trump and the Republicans who supported his confirmation.
This February, he wrote a 5-4 decision in Murphy v. Smith that effectively cuts the amount of damages that prison officials must pay when they severely abuse and injure prisoners, which was strongly criticized by Justice Sotomayor and the other moderate justices. And in early April, Gorsuch joined a 5-4 decision in Encino Motorcars v. Navarro that not only ruled that some 100,000 service advisors who work for auto dealerships are not entitled to overtime pay under federal law, but also, as Justice Ginsburg wrote in dissent, undermined “more than half a century” of Supreme Court precedent that has narrowly interpreted exemptions to overtime pay requirements and thus provided important protection for “vulnerable workers.”
With respect to the critical cases remaining on the Court’s docket this term, which are likely to be closely divided, Gorsuch’s record suggests he is likely to do more damage to our rights. For example:
- The Court will be deciding in Trump v. Hawaii whether to sustain an appeals court decision that struck down Trump’s anti-Muslim travel ban. As suggested in his opinion arguing that the ban should be allowed to take effect fully as the Court considers the case, Gorsuch appears all too likely to side with Trump completely.
- In the Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Comm’n case, the Court has been asked to decide whether a bakery can exempt itself from a state non-discrimination law and refuse to bake a wedding cake for a same-sex couple based on free speech and religion objections, which could have significant implications for LGBTQ equality and anti-discrimination efforts. Based on Gorsuch’s previous opinions on LGBTQ and religious liberty issues, Gorsuch seems likely to vote against non-discrimination and LGBTQ equality.
- In the Janus v. AFSCME Council 31 case, the Court is set to decide a crucial question concerning the rights of unions and workers, on which it split 4-4 before Gorsuch joined the Court: whether states can continue to require non-union members to pay for the costs of collective bargaining, a decision that right-wing activists hope will deal a “crushing blow” to unions. Observers have suggested that Gorsuch “is likely to supply a fifth vote” against workers and unions.
- The Court is considering two cases, Gill v. Whitford and Benisek v. Lamone, concerning the constitutionality of a practice that has seriously harmed our democracy: hyper-partisan redistricting or gerrymandering. The Court has previously been closely divided on whether it can properly consider this issue. But Gorsuch has already tipped his hand on this question, claiming in a previous appeals court opinion that the Supreme Court had already “put to bed” the issue of whether it can consider the gerrymandering issue. Experts have explained that Gorsuch’s claim was clearly wrong, but it unfortunately suggests how Gorsuch will vote in these crucial cases.
In short, Justice Gorsuch’s first year on the Court has shown not just that he is conservative, but also that he is a “conservative activist” who is trying to “mov[e] the law to the right on religion, gun rights, gay rights, and campaign funding,” as well as other issues. In just his first year, Gorsuch has “paid dividends for Trump more than perhaps any other move the president has made.” Gorsuch’s record must continue to be carefully scrutinized as he continues to serve for life on our nation’s highest court. And if another vacancy on the Supreme Court occurs while Trump is president, we cannot accept the blithe and bland assurances on which Republican senators relied to confirm Gorsuch.
Senators, and all Americans, must do everything they can to stop Trump from placing another Neil Gorsuch on the Supreme Court.