Commentary Law and Policy

Welcome to a New Term for the Gorsuch Court

Jessica Mason Pieklo

The U.S. Supreme Court opens another term Monday. By June, we'll learn just how much power Justice Neil Gorsuch can wield in a year.

The anointment of Neil Gorsuch to the U.S. Supreme Court is forever chained to the moment in political history when Republicans finally broke all ranks with the norms of professional conduct to seize control of the most powerful court in the country.

This term will mark Associate Gorsuch’s first full year on the Court. But he has already proven he intends to draw the justices to his ideological terrain, which is far to the right of even Chief Justice John Roberts. During his short time on the Court, he’s already helped reshape First Amendment law with his contribution to the Trinity Lutheran decision and signaled his support for President Donald Trump’s many Muslim bans. He’s also managed to squeeze in a stop in his home turf of Boulder County, Colorado, as the Republican Party’s guest of honor at its Fourth of July parade. He made time for a buddy tour with Sen. Mitch McConnell (R-KY), one of the men responsible for getting Gorsuch his job. And just this week, he spoke at the Trump International Hotel in Washington, D.C., at an event heavily funded by dark-money groups with an anti-worker, anti-environment, and anti-civil rights agendas.

Given all that, how much possible damage can Gorsuch do in one term?

The answer: Quite a lot.

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So far, the Court has agreed to hear cases involving partisan gerrymandering, voter purges, union feesimmigrant detention and removal rights, and religious refusals to serve LGBTQ couples—plus a host of criminal justice cases.

And the Court hasn’t filled its docket yet, either. It could also take up a transgender rights case. Hell, we may even get more health-care challenges and some birth control benefit cases too.

Gorsuch’s far-right positions also mean Justice Anthony Kennedy remains the Court’s swing vote until he retires, which some in the press say could happen as early as this term. I don’t think Kennedy’s retiring this term, by the way—not with an LGBTQ rights case and a partisan gerrymandering case currently on the docket. Those two areas of the law are perhaps the most tied to Kennedy’s legacy, and they’re areas he would hopefully like to cement before stepping down.

Whenever his retirement happens, though, it will place Chief Justice Roberts as the ideological swing vote, lurching the Court to the right in a way this country hasn’t experienced since Dred Scott was the law of the land. Roberts doesn’t have to agree with Gorsuch in his entirety; he just has to vote consistently with him and the other ultra-conservatives like Justices Samuel Alito and Clarence Thomas, which he already does.

And if that fact doesn’t send a chill down your spine, consider the cases working their way up the appellate courts. They include challenges to laws that would practically ban second-trimester abortion outright by outlawing one of the safest and most common methods of later abortion; attempts to enshrine damaging and discriminatory voter ID laws; and cases that could either cement workplace rights for LGBTQ employees or endorse workplace discrimination against those workers.

Plus, if Kennedy retires, Trump and his fellow Republicans would almost certainly nominate and appoint another ultra-conservative justice in the Gorsuch model.

Based on Gorsuch’s current voting record and with his ethically murky man-about-towning when Court is not in session, there is hardly any reason to believe he will side with protecting the rights of traditionally marginalized groups. Instead, he will almost certainly take the side of the evangelicals and business interests that helped appoint him to the bench.

Again, this leaves Kennedy as the swing vote. And his former clerk, Gorsuch, will certainly try to pull him to the right on these issues.  The best hope we have is that Kennedy refuses to follow along.

Which also means that unless Chief Justice Roberts does something to rein in Gorsuch, it’s Neil’s court now. And it will be for decades to come.

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