Announced live in prime time – but, thankfully, without any elimination rounds, women in bikinis or red roses for the winner – President Trump has nominated Neil Gorsuch to fill the vacant Supreme Court seat that the Republicans stole from Barack Obama. Gorsuch is currently a judge on the federal appeals court in Colorado and is widely viewed by Republicans as a solid conservative who will be, if confirmed, a suitable replacement for Justice Antonin Scalia.
Put differently, Gorsuch is a pick who should scare the bejesus out of anyone to the left of the radical right.
To quickly recap how we got here, Justice Scalia died almost a year ago, back in the halcyon days when a tyrannical megalomaniac wasn’t the U.S. president. Obama, who as president was entitled to fill Supreme Court vacancies, nominated the widely respected moderate federal judge Merrick Garland to fill Scalia’s seat. But Senate Republicans, who were at the tail end of spending eight years crushing all of Obama’s hope and naiveté, refused to hold hearings for Garland, so his nomination failed.
To this day, we have only eight justices on the Supreme Court. Contrary to some commentary out there, the Supreme Court can function perfectly well with only eight justices. It still hears and decides cases on a regular basis; there’s just an increased risk that the justices will deadlock four-four. However, even a four-four decision decides the case – by affirming the lower court decision but making no binding precedent.
Currently, there are four somewhat reliable conservatives and four somewhat reliable liberals on the Supreme Court. Adding Gorsuch as a ninth justice would tilt the ideological balance of power on the Court back to a clear advantage for conservatives. In other words, based on what we know about Gorsuch, his addition to the Court would swing it back to the right – but it shouldn’t be worse than when Scalia was on the bench, because a dyed-in-the-wool conservative vote would be replaced by a probably-dyed-in-the-wool conservative vote.
That’s still concerning, however. With Justice Scalia, the Roberts Supreme Court was one of the most conservative in history – some say the most conservative. Gorsuch, in many ways, would be very similar to Scalia, but younger. At 49, he’s the youngest nominee in decades, and could potentially be on the Court into the 2050s.
That means Gorsuch’s view of judging will have long-term effects for the United States. And what we know is that Gorsuch is likely to be a far-right conservative. He has spoken strongly in favor of originalism – the view that the Constitution should be interpreted as it was understood at the time it was adopted, rather than in a way that changes with the times. This view is most prominently associated with conservative justices such as Scalia and Clarence Thomas, who have applied originalism inconsistently but always to produce conservative results. He has also spoken out against using courts to bring about social change, something that is conservative code for opposing overreaching liberal reform.
In terms of specific cases that Gorsuch has decided: He sided with Utah’s governor in an attempt to defund Planned Parenthood following misleadingly edited videos released in the summer of 2015, and with Hobby Lobby in the lower court case that led to the Supreme Court’s decision against contraception coverage in 2014. (Gorsuch wrote a separate opinion to emphasize that not only Hobby Lobby, but also individual business owners, have religious liberty claims that trump their employees’ statutory right to access preventive health care.)
One area where Gorsuch may differ from Scalia is in his view of administrative regulations. The Supreme Court has a long-standing precedent that generally defers to administrative interpretation of the law, which means that the Court will usually side with the expertise of agencies like the EPA and the Department of Labor when they interpret statutes in order to advance their mission. Justice Scalia had largely followed this precedent, but Gorsuch has long questioned it. If his views catch on among the other justices, this could have devastating consequences for environmental, workplace and other regulation. Unclear for now is whether Gorsuch’s skepticism of administrative regulations would lead to skepticism of presidential power – sure to be a huge issue in the coming years under Trump.
For hot-button issues, we can look to the Court from before Justice Scalia’s death to see what will happen. With Scalia on the Court, the key vote was Justice Anthony Kennedy, who was a reliable conservative, though not nearly as conservative as others. Gorsuch might vote to overturn Roe v. Wade (though that’s not certain), but Justice Kennedy’s views will still decide abortion cases, and his vote this summer to strike down Texas’ restrictive anti-abortion legislation will remain the law of the land. Affirmative action in limited form will still be safe, as will LGBT rights; however, labor and environmental protections will be in danger, immigrants and criminal defendants will have reason to be fearful, and claims of religious liberty as a way to escape anti-discrimination laws will likely be successful.
The bottom line here is that, to the surprise of almost no one, President Trump has nominated a right-wing conservative who, if confirmed, will be very similar to Justice Scalia. Which means that his confirmation is key. Republicans currently control the Senate with a 52-48 majority. If the Democrats don’t filibuster, Gorsuch should sail through the confirmation process and join the Court soon.
Some Democrats have made noise about possibly filibustering whomever Trump picks. Sen. Jeff Merkely of Oregon, for instance, said he’ll filibuster anyone who isn’t Merrick Garland. Whether the Democrats remain united in support of the filibuster – they need to hold 41 votes to support it – is where the uncertainty lies. Although the Democratic base is urging the party to filibuster anyone, both because of the likely nominee’s extremism and as payback for Garland, recent reports have indicated that many Democrats are not so keen on doing so. They may be waiting to use that weapon for any subsequent Trump nominee (if there is one) who could tip the balance on the Court further to the right and threaten Roe and same-sex marriage.
If the Democrats do remain united and successfully filibuster Gorsuch, the Republicans have threatened to end the filibuster – the so-called “nuclear option.” Many Republicans don’t want to do this because they know they’ll need the filibuster in the future when they’re the minority party. But with the stakes so high, it would be a distinct possibility.
For now, one of the biggest unanswered questions of the Trump presidency is resolved: He’s followed through on his campaign promise and nominated a staunch conservative to the Supreme Court. From here, we wait to find out whether the Democrats will pull out all the stops to try to block him.