Now that Neil Gorsuch is a Supreme Court justice, what has he – President Trump's only success so far – been up to?
Well, for one thing, he joined the Court's conservatives Thursday night in approving the first execution in Arkansas in a dozen years, which was scheduled based on nothing but the date on which the execution drug will expire.
In addition to voting for the government to kill its own citizens, this week Gorsuch heard his first batch of cases as a justice. Most were technical cases – far from the high-profile legal issues that sometimes capture the nation's attention, like same-sex marriage, affirmative action or abortion.
One of the cases, though, has the potential to radically reshape how much support state governments can give to religious institutions – if it doesn't disappear with a whimper. The case comes out of Missouri, which, like 39 other states in the country, has a law that says no state funds can directly pay for religious activities.
Missouri applied the law to Trinity Lutheran Church, which also operates a preschool and daycare. In 2012, the church wanted to upgrade the surface of its playground, so it applied for state funding through the Missouri Scrap Tire Grant Program. Missouri, citing its law banning direct support for religious activities, denied the church's request.
As a result, the church sued the state, and now the Supreme Court is considering the case. The church claims that its religious rights are being infringed upon because, it claims, the state discriminates against religious institutions. The state, until this week (more on that in a minute), had maintained that its program was constitutional because it respects the separation of church and state and doesn't discriminate among religions.
On Wednesday, many justices, including Gorsuch, grilled Missouri about its policy. In past cases, before he joined the Court, Gorsuch has shown support for religious beliefs at the expense of broad societal norms. So if that view holds here, the Supreme Court could rule against Missouri. If it does so, the Court would probably also find that all similar state laws are unconstitutional and pave the way for direct funding of religion throughout the country.
It's also possible that the Court could completely avoid the matter. Just days before the case was argued, Missouri announced that it would stop discriminating based on religion in its scrap tire grant program. Technically, then, the case is moot, as there is no ongoing controversy, and generally the case would be dismissed. However, based on the Court argument earlier this week, it doesn't appear the justices want to dismiss it at this late stage of the game.
Religion is probably going to be a big-ticket issue in Gorsuch's immediate future in another case. Every Friday that the Court is in session, the justices get together to determine what new cases the Court is going to hear. These petitions need only four votes to add the case to the Supreme Court's docket.
One of the cases that the Court is scheduled to consider this week involves the issue of whether a conservative religious business can decide not to serve gay couples who are marrying. As everyone knows, the Supreme Court ruled in 2015 that states must allow same-sex couples to marry – but around the country some businesses are claiming that they have the right to not participate in these marriages by, for example, baking cakes. In doing so, the businesses run afoul of state anti-discrimination laws, so they are claiming that the requirement that they do serve gay couples infringes on their religious rights. One of these cases, out of Colorado, has been continually pushed from week to week on the justices' Friday calendar, indicating that they may have been waiting to consider the petition until a ninth justice joined the Court. Now that Gorsuch is there, if he joins three other justices in wanting to protect the rights of these religious businesses, the Court will take the case, and could ultimately chip away at same-sex couples being treated like full members of society.
Justice Gorsuch could also play a role in some cases that have already been argued to the Supreme Court. He is not allowed to participate in those cases at this point, but the Court could decide to have the cases re-argued to the full nine-member court. Three cases in particular might fall into this category: They involve predatory mortgage lending in minority communities, cross-border shootings by the U.S. Border Patrol and redistricting based on political considerations. The Court has given no indication that it will re-list any of these cases, but given their highly controversial nature, and the fact that these cases have not yet been decided, it's entirely possible.
Gorsuch is clearly associated with the views of late Justice Antonin Scalia and the Court's conservative wing, so he probably won't surprise us with his ultimate votes in these cases. Given that Gorsuch is only 49 and could be on the Court for three or four decades, we're just going to have to get used to the fact that, in cases like these, he's likely going to do everything he can to take the Court in a much more conservative direction.