Gorsuch Joins Thomas as Supreme Court’s New Conservative AnchorBy
New justice backs travel ban, gun rights, religious freedom
Gorsuch presents self as confident defender of his legal views
Justice Neil Gorsuch didn’t wait long to assert his place on the far right of the U.S. Supreme Court.
Less than three months after being sworn in, the Donald Trump appointee marked the end of the court’s term Monday by signing onto a barrage of opinions involving guns, gay rights, religion and the president’s travel ban.
With each, Gorsuch aligned himself with arch-conservative Justice Clarence Thomas. Together, they cast the other justices as being insufficiently vigilant in protecting gun rights and religious freedoms. They criticized the court for leaving part of Trump’s travel ban on hold and said the majority was too quick to side with a lesbian couple in Arkansas.
Along the way, Gorsuch presented himself as an aggressive, confident defender of the legal principles he backs. In the religion case, which said Missouri unconstitutionally excluded a church from a program to fund playground surfaces, Gorsuch said Chief Justice John Roberts shouldn’t have expressly limited the ruling to that type of program.
"The general principles here do not permit discrimination against religious exercise -- whether on the playground or anywhere else," Gorsuch wrote in an opinion that Thomas joined.
The gay-rights case stemmed from an Arkansas law that made it easier for male spouses of new mothers to get their name on the baby’s birth certificate than female spouses of new mothers.
Gorsuch, 49, faulted his more experienced colleagues for summarily reversing a lower court ruling without hearing arguments. The Supreme Court majority, citing the 2015 ruling that guaranteed gay-marriage rights, said Arkansas’s practice was unconstitutional.
"It seems far from clear what here warrants the strong medicine of summary reversal," Gorsuch wrote, joined by Thomas and Justice Samuel Alito.
Gorsuch didn’t have to take a position at all in the gun case, given that the court simply refused to hear an appeal that sought gun-carrying rights. He instead joined a blistering opinion by Thomas, who accused the court of being out of touch on the Second Amendment.
"For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous," Thomas wrote. "But the framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense."
Not Doubting Thomas
Gorsuch was the only justice who joined Thomas’s opinion. Three other justices who have backed gun rights in the home -- Roberts, Alito and Gorsuch’s former boss, Anthony Kennedy -- said nothing Monday.
Gorsuch, Thomas and Alito were the only justices to say they would have let Trump’s entire travel ban take effect to suspend entry into the U.S. from six mostly Muslim nations.
Liberals say Gorsuch’s record so far is confirming their worst fears when Trump nominated him to succeed the late Justice Antonin Scalia. The seat was open for Trump only because Republicans last year successfully blocked a vote on Merrick Garland, President Barack Obama’s nominee for the vacancy.
“His record so far on the court is hardly surprising to us,” said Nan Aron, president of the Alliance for Justice. “He has sided with the most ultraconservative justices on the court."
Gorsuch probably will continue to vote frequently with Thomas, said Leah Litman, who teaches at the University of California, Irvine, School of Law. Both justices read the Constitution with a focus on its original meaning and tend not to dwell on the practical implications of rulings.
Gorsuch "is likely to resolve his cases on very formalistic legal reasoning and to articulate his positions very forcefully," Litman said.
Michael W. McConnell, a professor at Stanford Law School and former judge who sat on the Denver-based appeals court with Gorsuch, said it’s too early to draw firm conclusions. But so far, the new justice has been "at least somewhat more conservative than I was expecting," McConnell said.
“The pattern is a bit surprising,” McConnell said. When each individual decision is examined, “I’m not sure that they are particularly skewed to the right, but the pattern is.”
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— With assistance by Joel Rosenblatt, and Bob Van Voris