WASHINGTON — Back in 2013, when the 10th Circuit Court of Appeals ruled in favor of Hobby Lobby’s legal challenge to the Health and Human Services’ contraceptive mandate, Judge Neil Gorsuch sided with the majority, but also wrote separately to focus on the owners’ individual rights.
The high-profile case in question, Hobby Lobby Stores, Inc. v. Sebelius, asked whether a family-owned company could claim an exemption from the HHS mandate under the Religious Freedom Restoration Act (RFRA).
The 10th Circuit found that a closely held corporation could claim free-exercise rights. But Gorsuch, in his opinion, also highlighted the moral conundrum faced by the Christian owners of the craft-store chain, Barbara and David Green.
“As they understand it, ordering their companies to provide insurance coverage for drugs or devices whose use is inconsistent with their faith itself violates their faith, representing a degree of complicity their religion disallows,” read Gorsuch’s opinion.
“No doubt, the Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive. But no one disputes that they are sincerely held religious beliefs,” he stated, in a reference to one provision of the federal Religious Freedom Restoration Act, which states that exempted religious beliefs must be sincerely held.
Now, following President Donald Trump’s announcement that Judge Gorsuch is his choice to fill the seat left vacant on the U.S. Supreme Court after the death of Justice Antonin Scalia a year ago, the nominee’s opinion in Hobby Lobby and other closely watched cases has drawn praise from legal experts who share his originalist interpretation of the U.S. Constitution on free-exercise rights, the rule of law and checks on executive power.
“Judge Gorsuch wrote an eloquent opinion in the Hobby Lobby case,” said Hannah Smith, senior counsel for the Becket Fund for Religious Liberty, a public interest group that has represented Hobby Lobby, the Little Sisters of the Poor and the Eternal Word Television Network (EWTN), the Register’s parent company, in their legal challenges to the HHS mandate.
The mandate required most employers to provide cost-free contraceptives, including abortion-inducing drugs and surgical sterilization, in their employee health plans, and the regulation featured an unusually narrow religious exemption.
As Gorsuch’s opinion made clear, the federal mandate forced the Greens to make “a choice between abiding by their religion or saving their business,” Smith told the Register, adding that Justice Samuel Alito picked up on that theme when he wrote the majority opinion in favor of Hobby Lobby a year later.
Gerard Bradley, a leading constitutional scholar at the University of Notre Dame Law School, singled out Gorsuch as a jurist whose originalist jurisprudence and gifts as a writer most closely adhere to the legacy of Justice Scalia.
“President Trump has chosen a worthy successor to Antonin Scalia, and the nominee deserves the support of any friend of human life, religion and the family,” Bradley told the Register.
“Judge Neil Gorsuch is, like Scalia, a textualist and an originalist when it comes to the Constitution, and that approach to judging gives no quarter to radical innovations like same-sex ‘marriage’ and Roe v. Wade.”
A nominee with sterling credentials from Columbia University, Harvard Law School and Oxford University and a clerkship with a Supreme Court justice, Judge Gorsuch, 49, has acknowledged his affinity for Scalia’s legal philosophy and his love of the outdoors.
Last year, during a speech at Case Western Reserve University School of Law, Gorsuch recalled that he learned of Scalia’s unexpected death in a phone call he received while skiing.
“I immediately lost what breath I had left,” he said. “And I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears.”
In that speech, Gorsuch suggested that the “great project of Justice Scalia’s career was to remind us of the differences between judges and legislators.”
Lawmakers “may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future,” he agreed.
But “judges should do none of these things in a democratic society.”
On Jan. 31, after Trump introduced Gorsuch as his choice for the high court during a televised event, the nominee vowed to “do all my powers permit to be a faithful servant of the Constitution and laws of this great country.” And before an audience that included Maureen Scalia, Justice Scalia’s widow, he hailed the late justice as “a lion of the law.”
Further, he expressed gratitude for the ongoing support he has received from his family — including his wife, Marie Louise, and the couple’s two daughters — and his faith; the judge attends an Episcopal church.
“These are the things that keep me grounded at life’s peaks and have sustained me in its valleys,” he said.
A Colorado native, Gorsuch was raised Catholic and attended his parish school before he moved with his family to Washington, D.C., for his high-school years and attended Georgetown Preparatory School, a Jesuit institution. Anne Gorsuch Burford, his mother, was appointed by President Ronald Reagan to lead the Environmental Protection Agency.
After high school, Gorsuch completed his undergraduate studies at Columbia University and then attended Harvard Law School.
Later, while clerking for Justices Anthony Kennedy and Byron White, Gorsuch was hired by the white-shoe law firm Kellogg Huber.
However, he opted to delay his move to the firm, as he had received a Marshall Scholarship to study at Oxford University, where he completed doctoral studies on the moral and legal problems posed by assisted suicide and euthanasia. He studied under the guidance of the influential Catholic legal philosopher John Finnis, a leading proponent of natural-law theory.
Though Gorsuch has not set forth his views on related life issues, including legal abortion, pro-life scholars are reassured by the commentary in his book, The Future of Assisted Suicide and Euthanasia, and in articles published in scholarly journals.
“Gorsuch wrote in his very fine book that ‘human life is fundamentally and inherently valuable,’ so that it is ‘always wrong’ for any private person to intentionally kill another human being,” noted Notre Dame’s Bradley.
In his book, Gorsuch mounts a compelling argument against assisted suicide.
“To act intentionally against life is to suggest that its value rests only on its transient instrumental usefulness for other ends,” he stated, and proposed guidelines for care at the end of life that reject actions that seek to cut short a person’s life.
Teresa Collett, a professor at the University of St. Thomas law school and a former student of John Finnis, said Gorsuch’s doctoral work with the Australian-born philosopher served as a guidepost for the jurist’s own moral values.
Given the substance of Gorsuch’s book on assisted suicide and euthanasia, “it gives us reassurance that the nominee believes in the inherent dignity of every person, and thus believes that dignity requires a limit on government power when dealing with life-and-death issues,” said Collett.
A formative relationship with Finnis would also shape Gorsuch’s understanding of liberty. Liberty “must be oriented toward the good, rather than redefined as personal license,” she suggested.
“I have no qualms about Gorsuch,” she added. “I have the qualms we all have because we got Justice Kennedy under a Republican president. But I see nothing in his record that gives me pause.”
Beyond the community of jurists and scholars who share his skepticism of activist judges who legislative from the bench, Gorusch has earned wide respect for the verve and substance of his opinions.
“Gorsuch’s opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why,” said Eric Citron, in a post on Scotusblog, the go-to website for court watchers.
“Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making.”
Indeed, amid the political furor sparked by Trump’s executive orders suspending the resettlement of refugees in the U.S. and restricting immigrants from specified countries, one influential Democrat signaled that Gorsuch might be the best choice from the president’s short list of potential nominees for the high court.
“I have no doubt that, if confirmed, Judge Gorsuch would help to restore confidence in the rule of law,” stated Neil Katyal, the acting solicitor general of the United States from May 2010 until June 2011 during the Obama administration, in a Jan. 31 column for The New York Times opinion page. “His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him.”
At issue, say legal specialists, is Gorsuch’s skeptical treatment of the so-called “Chevron doctrine,” legal precedent that has led the courts to defer to federal agencies’ interpretation of the law, rather than the language of the statute in question. Such deference, he wrote in an opinion dealing with an immigration case, Gutierrez-Brizuela v. Lynch, is “a problem for the people whose liberties may now be impaired” by “an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”
Legal specialists on both sides of the aisle acknowledge the problems with the Chevron doctrine and its role in fostering the power of federal administrators.
Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, a conservative group that has helped defend Supreme Court nominees like Justice Alito, noted that Hobby Lobby’s lawsuit challenged the federal government’s argument that RFRA did not protect family-owned companies like the craft-store chain. Likewise, a fresh round of lawsuits now challenge the Department of Education’s expansive interpretation of Title IX to include a prohibition on discrimination based on gender identity, as well as sex, at schools that receive federal dollars.
Severino observed that the new interpretation of Title IX was issued by a “low-ranking” administrator at the federal agency, and so bypassed the legislative process entirely. “Now that we have a change in administration, perhaps liberals will recognize what conservatives were concerned about,” she said.
It is too soon to say whether Democrats may come to appreciate Gorsuch’s record on such matters and reconsider a push by liberal activist organizations to block his nomination.
Since the late Sen. Edward Kennedy, D-Mass., led a brutal and ultimately effective campaign to quash the nomination of Judge Robert Bork in 1987, such battles have become part of the partisan playbook on Capitol Hill.
An hour after Trump introduced Gorsuch as his choice for the high court, People for the American Way, a liberal group that has played a leading role in previous confirmation fights, had already scheduled its first protest. Gorsuch’s opinion in Hobby Lobby was singled out as evidence of his unacceptably radical interpretation of the Constitution.
“The ruling that Gorsuch joined disturbingly allowed corporations to use religion as a guise to discriminate against women,” read a statement released by the group following Gorsuch’s nomination.
Thus far, Senate Minority Leader Chuck Schumer, D-N.Y., has pledged to require a 60-vote threshold in the Senate to overcome a filibuster designed to block Gorsuch’s path to confirmation. The Senate’s 52 Republicans will need eight Democrats to meet that standard.
“There will be 60 votes for confirmation,” Schumer vowed in a Feb. 1 statement from the Senate floor.
“On a subject as important as a Supreme Court nomination, bipartisan support should be a prerequisite. It should be essential. That’s what 60 votes does.”
Senate Republicans could decide to change the rules and allow Gorsuch to be confirmed on a simple majority vote: the so-called “nuclear option.” Though Trump has encouraged his allies in the Senate to take that path, if necessary, Senate Majority Leader Mitch McConnell, R-Ky., has said he will try to build support for Gorsuch from Democrats, especially those in blue states that flipped for Trump in the 2016 election. One such Democrat, Sen. Joe Manchin of West Virginia, has already said he will not join any filibuster.
Meanwhile, Gorsuch’s supporters are prepared to do battle, though they question whether weakened Democrat lawmakers have the stomach for a showdown.
The Senate will begin confirmation hearings in mid-March, and Severino’s Judicial Crisis Network will raise $2 million for a multimedia ad campaign that will spread the word about Gorsuch’s strong record and also pressure vulnerable Democrats to back off, in order to protect their seats in the 2018 midterm election.
“Trump has changed the political landscape,” said Severino, “and some Democrats are already saying, ‘Let’s let this one go. This [seat] is Scalia’s.’”
What’s Ahead for the Court?
While Judge Neil Gorsuch prepares for a grueling round of Senate confirmation hearings in mid-March, court watchers are perusing the lineup of important cases that lie ahead.
— Gloucester County School Board v. G.G. will scrutinize the Obama administration’s interpretation of Title IX to include a ban on discrimination based on gender identity, as well as sex, for schools that received federal funds. A Virginia county school board has challenged a federal appeals court decision that gave a 17-year-old female, who now identifies as a boy, the right to use the bathroom that corresponds with her gender identity. When the lower court ruled in favor of the student, it cited the government’s interpretation of Title IX as the basis for this decision.
The justices will address two questions: the legality of the government’s interpretation of Title IX and whether the administration followed approved procedures when it issued its expansive view of Title IX. This closely watched case has been scheduled for March 20-21. However, as a Feb. 3 post on Scotusblog confirmed, the “time for the Trump administration to file a brief in the Supreme Court supporting the school board has passed, but the federal government could still rescind the Department of Education letter at the heart of the case or issue its own guidance on the issue.”
— Trinity Lutheran Church of Columbia v. Pauley has special relevance for Catholic educators and parents of school-age children. Missouri-based Trinity Lutheran’s preschool was denied access to a state program designed to improve playground safety and sued to overturn the state’s Blaine Amendment, which prohibits the use of taxpayer funds for church-affiliated schools. The school’s lawsuit noted that its application to a state program, which provides rubberized material for school playgrounds, was ranked fifth out of 44 submissions and that the denial of assistance was based solely on the applicant’s status as a church school.
The justices will decide “[w]hether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.” A decision in favor of the Lutheran school will bolster state-voucher initiatives that have faced constitutional challenges in the past. This case has not been scheduled.
— Endrew F. v. Douglas County School District is a third education case that will be of great interest to parents who seek special accommodations for children with disabilities. It asks, “What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals With Disabilities Education Act?”
The parents of an autistic teenage student with attention deficit disorder have challenged a lower-court ruling, which found that their school district was not required to repay the tuition for a private school that best met the child’s needs. The law’s provisions for school accommodation did require school districts to meet that higher standard, the lower court determined, and the student’s public school had received reasonable accommodation.
The court will also address important cases dealing with property rights, patent law, immigration law and a challenge to police officers’ legal immunity in actions that involve “excessive force.”
A shorthanded court could delay the scheduling of other cases approved for review. “Normally, the justices wrap up arguments in cases in April, with the final decisions for a term announced in late June. However, with a vacancy on the bench to be filled in early 2017, it remains to be seen when some cases will be scheduled and heard in Washington,” noted a National Constitution Center blog post.
— Joan Frawley Desmond