The most alarmist pessimists were right about Neil Gorsuch

Blessed be the fruit.

CREDIT: AP Photo/Susan Walsh, File
CREDIT: AP Photo/Susan Walsh, File

Last February, when Judge Neil Gorsuch was still awaiting his confirmation hearing, I wrote a piece outlining the “worst case scenario if Trump’s Supreme Court nominee is confirmed.” Based on Gorsuch’s short time occupying a seat on the nation’s highest Court, it now appears that this scenario is becoming reality.

Gorsuch is disrespectful of precedent and eager to move the law very far, very fast. His agenda is both well-thought out and extraordinarily conservative. When the Court splits into its old factions, with Justice Clarence Thomas staking out a position that no other member of the Court will sign onto, Gorsuch embraces Thomas’ view.

Gorsuch spent the last day of the Court’s just-concluded term, moreover, laying out a vision that will make culture warriors bounce with glee. His ascension to the Supreme Court was the culmination of an effort to protect religious conservatives by any means necessary.

And, if Gorsuch gets his way, some very basic civil rights will bow to the Christian right.

The crisis

Eight years ago, religious conservatives were terrified. President George W. Bush was disgraced — and discarded for an urban, cosmopolitan new president. President Obama saw contraception as an unambiguous moral good and LGBTQ Americans as his brothers and sisters. And he had a Democratic-controlled Congress that largely shared his values.


In the midst of this crisis, more than 200 religious conservative leaders pledged themselves to an audacious solution: open defiance of the law. “We will not comply with any edict that purports to compel our institutions to participate in abortions,” proclaimed a document known as the Manhattan Declaration, “nor will we bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.”

Flash forward to the much more recent past, after Donald Trump was elected president and announced his intent to fill the Supreme Court seat that Republicans held open for him with Neil Gorsuch, and Princeton Professor Robert George — one of the authors of the Manhattan Declaration — was elated. George is probably the nation’s leading anti-LGBTQ scholar. A former chair of the National Organization for Marriage, which tried and failed to halt the spread of marriage equality in the United States, George was cited twice in a dissenting opinion by Justice Samuel Alito, which complained that the so-called Defense of Marriage Act was struck down.

George gushed about the Gorsuch nomination in an op-ed published by the Washington Post. “Gorsuch will be a hard man to depict as a ferocious partisan or an ideological judge,” George wrote of a man who tried to hobble a law protecting disabled children before he was unanimously rebuked by his eight new colleagues.

Yet, in a straightforward admission that George knew what he stood to gain from a Gorsuch confirmation, the professor also wrote that, on “abortion, same-sex marriage, gun control, campaign finance reform and religious freedom,” Gorsuch was likely to vote “pretty much the same way Scalia did.”


Indeed, if Neil Gorsuch gets his way, the hundreds of defiant conservative leaders who signed George’s Manhattan Declaration will be given broad discretion to defy the law by the Supreme Court itself.

Echoing religious conservatives who sought the right to deny birth control coverage to their employees, Gorsuch wrote as a lower court judge in the original Hobby Lobby litigation that “all of us face the problem of complicity,” and “all of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.”

Hobby Lobby set off a doctrinal earthquake when it reached the Supreme Court, holding, for the first time, that a religious objection can be wielded to limit the rights of a third party. And now, with Gorsuch occupying a seat on the Supreme Court, the Court is preparing to hear a case that could grant the Christian right a license to engage in straight up discrimination.

Gorsuch, moreover, has already telegraphed how he will vote in this case.

We don’t serve your kind here

Last Monday was a big day for Neil Gorsuch — and not a hopeful day for anyone who believes that LGBTQ people are fully human and entitled to the same rights as everyone else. Gorsuch revealed himself as a hardline conservative on marriage equality and called for a broad expansion of Hobby Lobby. And he did so on the very same morning that the Court announced that it would decide whether religion is a license to discriminate.


The marriage equality case involved an Arkansas law providing that a mother’s husband will automatically be listed on a birth certificate as the child’s father, even in many cases where the husband is not the biological father, but that did not afford similar treatment to same-sex couples. Such a rule, a majority of the Supreme Court explained, violates the Court’s holding in Obergefell v. Hodges that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’”

Gorsuch disagreed, pointing to the state’s arguments “that rational reasons exist for a biology based birth registration regime.” Never mind, of course, that Arkansas did not have a “biology based birth registration regime,” as it often listed non-biological parents on birth certificates so long as that parent is a man married to a woman.

The conservative jurist’s use of the word “rational” here is also highly significant, as it offers a window into how Gorsuch views discrimination on the basis of sexual orientation generally. The lowest level of scrutiny the Court applies in constitutional discrimination cases — the level it typically applies to allegations it views as dubious — is known as “rational basis,” and it provides that the government is free to do whatever it wants so long as it can articulate a rational reason for doing so.

So when Gorsuch defended Arkansas’s law by pointing to allegedly “rational reasons” for it to exist, he suggested that discrimination based on sexual orientation isn’t something the courts should worry themselves about.

Less than an hour later, the Court handed down Trinity Lutheran Church v. Comer, a closely watched case about the separation of church and state.

Chief Justice John Roberts’ majority opinion in Trinity Lutheran establishes that the government generally cannot disqualify an institution “from a public benefit solely because of [the institution’s] religious character.” Thus, the state of Missouri erred when it didn’t allow a church to participate in a program that provides soft rubber surfaces for children’s playgrounds.

Gorusch mostly joined this opinion, but he also wrote a separate opinion calling for the Court to hand a much greater victory to the religious right.

Robert’s opinion, Gorsuch wrote, “leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use.” That is, while it is typically unlawful to discriminate against someone because they are a Christian or a Muslim or a Buddhist, Roberts’ opinion still allows the government to sanction someone for taking an action motivated by their religious faith.

As Gorsuch puts it, “I don’t see why it should matter whether we describe” a government benefit “as closed to Lutherans (status) or closed to people who do Lutheran things (use).”

But there is a very important reason why the Court should draw this distinction. Consider, for example, Hobby Lobby. It would be unconstitutional for the federal government to pass a law saying “no Christian business may deny birth control coverage to their employees,” because such a law would single out Christians for different treatment than people of other faiths. But that’s not what the birth control rules at issue in Hobby Lobby did.

Instead, Hobby Lobby was a case about business owners who thought that denying birth control coverage is the Christian thing to do.

Or consider Masterpiece Cakeshop v. Colorado Civil Rights Commission, which the Supreme Court recently announced that it will hear in its next term. Colorado didn’t enact a law saying that Christian business owners must be treated differently than other business owners, it enacted a law preventing all businesses from discriminating on the basis of sexual orientation.

Nevertheless, the business at the heart of Masterpiece Cakeshop claims that it should be allowed to refuse to serve a same-sex couple because discriminating against gay people is the Christian thing to do.

Roberts’ opinion in Trinity Lutheran leaves open the possibility that religious belief will not be construed as a license to discriminate. Gorsuch’s opinion, by contrast, strongly indicates that he intends to back the anti-LGBTQ business at the heart of Masterpiece Cakeshop.

Revolutionary change

Gorsuch’s most revealing opinion in his short tenure in Washington D.C., however, may be his dissent in a much less-high profile case involving a far more arcane issue. In an impossibly boring case involving an obscure statute, Gorsuch went to war with most of his colleagues, with established precedents, and even with one of the Court’s most conservative members.

Judges simply don’t behave this way. Or, at least, normal judges don’t behave this way. When there are no grand principles at stake and existing precedents clearly point in one direction, judges typically follow the path that’s already been blazed for them. Often, certainty in the law matters even more than the question of what the law is.

But not for Gorsuch. For him, even the most arcane case is an opportunity to tear down everything that came before him.

“Who wrote this statute?” an incredulous Justice Alito asked at one point during oral arguments in Perry v. Merit Systems Protection Board. “Somebody who takes pleasure out of pulling the wings off flies?”

“The one thing about this case that seems perfectly clear to me,” Alito declared near the end of a frustrating oral argument, “is that nobody who is not a lawyer, and no ordinary lawyer, could read these statutes and figure out what they are supposed to do.”

Perry involved a mind-numbing question regarding how certain complaints by federal employees must proceed through the judicial system. If a federal employee alleges they were fired, demoted, or faced some other serious discipline in violation of the Civil Service Reform Act of 1978 (CSRA), their claim is reviewed first by the Merit Systems Protection Board, and then by the United States Court of Appeals for the Federal Circuit. But if they allege a violation of federal anti-discrimination law, the proper judicial forum is a federal district court.

The question in Perry was what should happen in certain “mixed” cases where an employee alleges both a violation of the CSRA and a violation of anti-discrimination law.

The pain of not knowing the answer to this question must be killing you, I know. So allow me to end the suspense. Seven justices, in an opinion by Justice Ruth Bader Ginsburg, concluded that the case goes to a federal district court. Gorsuch, joined by Justice Thomas, disagreed.

What’s interesting about this case isn’t this outcome, or even the fact that Gorsuch disagreed with the outcome. What’s interesting is that, despite Alito’s entirely justified frustration with the ungainly statute at issue in Perry, there was exactly one lawyer who was absolutely certain what the law says: Neil Gorsuch.

At oral arguments, Gorsuch repeatedly asked an advocate arguing on behalf of the government to disregard a 2012 opinion establishing that “mixed” cases typically go to a district court and not to the Federal Circuit, demanding that the lawyer justify that result under the statute. He repeatedly suggested that the “plain language” of the law — again, a law whose language Alito compared to an exercise in sadism — mandated just one result. And he insisted that past precedents must be cast aside to implement this result.

Then, Gorsuch used his dissenting opinion to lecture the seven justices in the majority — all of whom, it should be noted, have been doing their jobs a lot longer than Mr. Gorsuch — for refusing to follow the law’s one true meaning. “At the end of a long day, I just cannot find anything preventing us from applying the statute as written,” Gorsuch proclaimed, “or heard any good reason for deviating from its terms.”

“Congress already wrote a perfectly good law,” he concludes. “I would follow it.”

Again, the point isn’t that Ginsburg is right, and that Gorsuch is wrong, about how to read this arcane and labyrinthian statue. Rather, the point is that Gorsuch appears to be the only person on the planet who is absolutely sure how to read this law, and absolutely convinced about how to proceed.

And, when confronted with the fact that the Court reached an entirely different conclusion in a very similar case five years ago, Gorsuch simply waves that case off. Uncertainty be damned! Precedent be damned! The warnings and frustrations of conservative stalwarts like Justice Alito be damned! Neil Gorsuch thinks that he knows the one correct answer, and no one will tell him to reconsider.

If he’s willing to take that approach to a tortuous statute in a case with very little at stake, just imagine what he’ll do when he encounters a case he actually cares about.

Just imagine what he’ll do to marriage equality.