Whatever else comes of the Donald J. Trump presidency, already he has perfectly fulfilled one campaign pledge in a way that will affect the entire United States for a generation or more: putting another Antonin Scalia on the Supreme Court. The early signs from Justice Neil Gorsuch, who joined the Court in April, show that he will hew to the late Justice Scalia’s brand of jurisprudence, both in his conservatism and his boldness.
Usually it takes a few years to get the full sense of a new justice. The job provides awesome power, and new justices often are reluctant to issue stark opinions or stake out strong positions early on. Chief Justice John Roberts and Justice Samuel Alito, for example, were at first cautious on campaign finance and voting rights issues. Only later did they sign on to blockbuster decisions like 2010’s Citizens United campaign finance case (allowing corporations to spend unlimited sums in elections) or 2013’s Shelby County voting case (in effect killing off a key Voting Rights Act provision).
Not so with Gorsuch. In a flurry of orders and opinions issued Monday, Gorsuch went his own way. The majority affirmed the right of same-sex parents to have both their names appear on birth certificates, but Gorsuch dissented. The majority chose not to hear a challenge to California’s public carry gun law, thus leaving it in place, but Gorsuch dissented. Gorsuch also wrote separately in the Trinity Lutheran case, on whether a parochial school may take government money for playground safety equipment. The court found in favor of the school, but Gorsuch went even further to the right in endorsing the government’s ability to aid religious organizations. This followed his dissent with Justice Clarence Thomas a few weeks ago over the court’s failure to consider overturning the “soft money ban” in the McCain-Feingold campaign finance law.
Gorsuch also joined with conservatives Alito and Thomas to partially dissent from the Supreme Court’s Monday order in the travel ban case. The court split the baby, ruling that until the court hears the case this fall, only part of the ban may go into effect. (The government cannot enforce the travel ban against foreign individuals from six predominantly Muslim nations who have family, work or university connections to people or entities in the United States.) The dissenters would have allowed the Trump administration to enforce the entire ban until the court could fully consider the case.
Setting aside his emerging alliance with Thomas and Alito, Gorsuch has already staked out some positions just for himself. In Monday’s Hicks vs. United States decision, Gorsuch found himself disagreeing with Thomas and Roberts and siding with a criminal defendant. “A plain legal error infects this judgment — a man was wrongly sentenced to 20 years in prison under a defunct statute,” Gorsuch wrote. He voted in favor of granting relief while Thomas and Roberts voted against. In this too he resembles Scalia, who issued some surprising decisions favoring criminal defendants. (Both sides cited an earlier opinion by Scalia on when it is appropriate to send the case back to the lower court to fix the error.)
Gorsuch also seems to share Scalia’s unyielding confidence that it is possible to apply grammatical rules of statutory interpretation to reach the “right” result in even thorny cases construing federal law. Indeed, he treated his first majority opinion about who counts as a “debt collector” under federal law — in Henson vs. Santander Consumer U.S.A. — as essentially a grammar lesson applying Scalian “textualism.” And writing for himself, Alito and Thomas last week in Perry vs. Merit Systems Protection Board, he snarkily declared “If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation.”
The next term of the Supreme Court is shaping up to be a major one, including not only the travel ban case, but also the so-called cake shop case on whether a religious business owner can deny services to same-sex couples. In due time, the court will no doubt also tackle more cases involving abortion, voting rights, gun rights and campaign finance. While the precise contours of Gorsuch’s opinions are uncertain, and he could surprise in criminal cases, there’s little doubt that, like Scalia, conservatives will be able to count on his vote.
Richard L. Hasen, a professor of law and political science at the UC Irvine School of Law, is working on a book about Scalia’s legacy.