Neil Gorsuch: An Heir to Scalia

By Sanjay Dureseti​​
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Sanjay Dureseti is a sophomore at the University of Pennsylvania and an associate editor of the Penn Undergraduate Law Journal.

Amidst a flurry of high-profile executive actions and bitter confirmation hearings that headlined the first weeks of his presidency, Donald Trump proposed filling the most politically charged Supreme Court vacancy in decades with a decidedly uncontroversial figure. Mr. Trump nominated Neil M. Gorsuch, a George W. Bush appointee who currently serves on the U.S. Court of Appeals for the Tenth Circuit, to occupy the seat left open by the death of Antonin Scalia in February 2016. While Democrats, still seething over the obstructionist tactics employed by Republicans in preventing the confirmation of Merrick Garland, will likely seek political retribution by protracting Gorsuch’s confirmation, the judge has established himself as a natural heir to Scalia’s jurisprudential philosophy.

To properly understand the eventual impact that Gorsuch’s appointment will have on the Court’s decisions, it is first necessary to evaluate his predecessor’s role on the bench. Scalia was a staunch originalist and textualist, meaning that he interpreted the Constitution narrowly and did not presume to grasp the social or political intentions of the Framers in establishing certain clauses. As a result, Scalia often railed against the notion of unenumerated rights, the expansion of federal power, and the encroachment of the central government on state actions.

​Gorsuch, as made apparent throughout his judicial history, is a zealous supporter of Scalia’s approach. As a member of the Tenth Circuit, he was involved in the prominent Hobby Lobby case, in which the Affordable Care Act’s mandate requiring employers to provide contraceptives was challenged on First Amendment grounds. Gorsuch argued that business entities were entitled to exercise their faith-based principles throughout all aspects of private management, a position that was upheld and enshrined by the Supreme Court. The Hobby Lobby case was yet another example of the Court’s extension of constitutional rights to corporations, jurisprudence that was championed by Justice Scalia in the Citizens United v. F.E.C. case of 2010. [1]

Gorsuch also falls in line with Scalia regarding the display of religious iconography in public places. In past opinions, including American Atheists v. Davenport, and Green v. Haskell County Board of Commissioners, Gorsuch rejects the endorsement test, which he sees as a major roadblock for religious freedom. The endorsement test, formulated by Justice Sandra Day O’Connor, promotes a practical jurisprudential methodology to questions surrounding the Establishment Clause. O’Connor’s theory proposes that judges consider the government to be in violation of the First Amendment if a “reasonable observer” can view governmental actions as endorsements of particular religions. [2] Gorsuch, as demonstrated through his opinions, believes that this test proves to be far too restrictive and, like Scalia, accepts the potential of public facilitation of religious belief.

Gorsuch’s Scalia-esque approach is also evident in his dismissal of the dormant Commerce Clause (DCC), a Constitutional interpretation that imposes limitations on the power of states to pass legislation affecting interstate commerce. Along with the notorious interstate commerce clause itself, the DCC has been implemented by the loose constructionists of the Supreme Court to drastically increase federal oversight of nationwide economic activity. Scalia, the champion of originalism, predictably despised DCC and deemed it “judicial fraud,” as it is not explicitly laid out in the passages of the Constitution. Although proponents of the DCC, including Scalia’s conservative allies, contend that the intent of a central founding document is to prevent interstate trade wars and promote commercial cohesion, Scalia’s textualist approach does not consider the historical moment of the Constitution’s ratification. [3] Gorsuch holds a similar view of the DCC, as evidenced through his repudiation of the Quill rule within the DCC doctrine. The Quill rule allows interstate mail to be exempt from sales tax, which Gorsuch views as a microcosm of the DCC’s distortion of the Constitution’s structure and an unnecessary leap beyond the document’s stated provisions. [4]

In fact, Gorsuch takes an even narrower view than Scalia regarding the powers of the federal government. He made legal waves months before the 2016 election by writing passionately against the use of the Chevron test, which gives federal agencies considerable leeway in carrying out ambiguous laws passed by Congress. The Chevron case established a level of technocracy within US administrative law that has operated as the status quo for decades. Gorsuch, however, refers to Chevron’s centralization of federal power and bureaucratic expansion as a perversion of the Framers’ design in Gutierrez-Brizuela v. Lynch. He relies on the argument that deference to federal agencies clearly usurps the doctrine of separation of powers and allows judges to indiscriminately rewrite existing law without respecting the previous decisions of the judicial, executive, and legislative branches. [5] Gorsuch, therefore, is even more of a federalist than Scalia, positioning him to firmly occupy the Court’s conservative wing for years to come.

Neil Gorsuch’s skepticism of judicial deference and contentment with public expressions of religious doctrine place him directly right of Scalia on the ideological spectrum. Gorsuch will maintain the balance of the Court that existed before Scalia’s death and Mr. Trump’s election. His nomination and likely confirmation will also represent a political coup for the Republican Party which, along with controlling the executive and legislative branches, will institute a justice whose disregard for unenumerated liberties ensures that the rollback of same-sex marriage and abortion rights remains a possibility. But, even though Gorsuch’s confirmation is likely, Democrats will guarantee that President Trump and his party must fight to fill the “stolen seat.”

[1] Vladeck, Steve. “Hobby Lobby and executive power: Gorsuch’s key rulings,” Cable News Network, February 1, 2017. Accessed February 3, 2017. http://www.cnn.com/2017/01/31/politics/hobby-lobby-executive-power-gorsuch-key-rulings/
[2] “Establishment clause overview,” First Amendment Center, September 16, 2011. Accessed February 3, 2017. http://www.firstamendmentcenter.org/establishment-clause/
[3] Dorf, Michael C. “Is the Dormant Commerce Clause a Judicial Fraud?,” Justia: Verdict, May 20, 2015. Accessed February 4, 2017. https://verdict.justia.com/2015/05/20/is-the-dormant-commerce-clause-a-judicial-fraud
[4] Citron, Eric. “Potential nominee profile: Neil Gorsuch,” SCOTUS Blog, January 13, 2017. Accessed February 4, 2017. https://verdict.justia.com/2015/05/20/is-the-dormant-commerce-clause-a-judicial-fraud
[5] Adler, Jonathan H. “Should Chevron be reconsidered? A federal judge thinks so,” Washington Post: The Volokh Conspiracy, August 24, 2016. Accessed February 4, 2017. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/24/should-chevron-be-reconsidered-a-federal-judge-thinks-so/?utm_term=.d4f9a8bb78f2
Photo Credit: Flickr User Daykan com

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