On Tuesday evening, Trump announced his nominee to replace anti-LGBT and far-right conservative Supreme Court Justice Antonin Scalia, who died last February, via Facebook Live. Trump’s pick is 49-year-old Neil Gorsuch, a federal appeals court judge from Denver, CO, who is already projected to be one of the most conservative judges to see the bench if confirmed. That means Gorsuch is projected to be even more conservative than Scalia, who was vehemently anti-LGBT and once compared gay people to murderers. Trump fulfilled one of his campaign promises to select a conservative judge who modeled after Scalia. Gorsuch would also be very young for appointment to the lifetime position of Supreme Court justice, meaning that his impact on the court and shaping the nation would be very long-lasting. Let’s take a dive into what we can expect from this newly nominated slimeball!
Who Is This Guy?
Gorsuch is a judge on the U.S. Court of Appeals for the 10th Circuit in Denver. He was appointed to the position in 2006 by George W. Bush. He was born and raised in Colorado and is an avid outdoorsman, spending his time fishing and skiing. He has two teenage daughters with his wife, Louise. He attended Harvard Law School and holds degrees from Colombia and Oxford. He’s worked for the Department of Justice and was a clerk for two Supreme Court Justices, Byron White and Anthony Kennedy. He’s known for his clear legal opinions, and lawyers who work in his circuit say he is popular and approachable. If appointed, he would be the youngest one on the bench, making it possible for him to weigh in on important cases for the next 30+ years.
How He Interprets Law
There are many parallels between Gorsuch and Scalia, particularly in how they interpret the law. They’re both textualists, meaning they’re both concerned with the literal text of the law and not with the text’s history or its present-day social context. Gorsuch admired Scalia because of his staunch belief in textualism. After Scalia’s passing, Gorsuch spoke to students at Case Western Reserve University’s law school, giving us insight to how he interprets laws. He wholeheartedly believes judges should strictly make decisions based on the direct interpretation of the law instead of making decisions according to their own morals and beliefs or weighing the law’s consequences once enacted.
But tonight I want to touch on a more thematic point and suggest that perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators 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. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best. As Justice Scalia put it, “[i]f you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
The SCOTUSblog describes the parallels between Gorsuch and Scalia as “eerie.”
“He is an ardent textualist (like Scalia); he believes criminal laws should be clear and interpreted in favor of defendants even if that hurts government prosecutions (like Scalia); he is skeptical of efforts to purge religious expression from public spaces (like Scalia); he is highly dubious of legislative history (like Scalia); and he is less than enamored of the dormant commerce clause (like Scalia).”
Gorsuch also considers himself an originalist, which is the same bullshit textualism is about. He believes the law should be interpreted “according to the meaning of the Constitution as it was written.” Business Insider reports Gorsuch frequently asked his clerks to find historical sources when a constitutional issue arose in a case. David Feder, one of his former clerks wrote in a blog post: “‘We need to get this right,’ was the motto — and right meant ‘as originally understood,'” Feder said.
By maintaining that the Constitution and the law should be interpreted the way dead white dudes intended them, it erases the perspectives of the majority of the country, which includes women and people of color, those not allowed to be at the table at the inception of the law. It means Gorsuch judges his way through cases by holding the law to an unrealistic standard that doesn’t serve anyone but Christian white men. How does his philosophy of the law hold up when it comes to real life cases? Not so great, my friends.
On Religious Freedom
As the SCOTUSblog succinctly put it, Gorsuch is an “ardent defender of religious liberties and pluralistic accommodations for religious adherents,” which does not bode well for LGBT folks as legislators push to legally discriminate against LGBT folks under the guise of religious freedom. As a judge in the 10th Circuit, he’s ruled on several vital cases regarding religious freedom. Most notably, he ruled in favor of Hobby Lobby in the 2013 Hobby Lobby Case. He ruled the Affordable Care Act’s mandate that employee insurance plans must cover contraceptives without a co-pay violated the rights of those employers that object to some or all contraceptives on religious grounds, and sided with the conservative Christian family who owns the craft supply store and sued the federal government over the mandate. “The ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong,” Gorsuch wrote on the case. The Supreme Court issued a similar ruling later on.
In another case involving a Catholic order the Little Sisters of the Poor, an order which operates nursing homes, argued that enactment of parts of the Affordable Care Act related to coverage for contraception placed an undue burden on their religious freedom. The 10th Circuit denied them a hearing but Gorsuch dissented and argued the court should show more deference for their religious beliefs.
On LGBT Rights
Gorsuch hasn’t been called to rule on any specifically LGBT-related cases so we don’t know for sure how he will decide on cases dealing with sexual orientation or gender identity. However, he does have a history of opposing civil rights. As an attorney in 2005, he wrote an article for the National Review and called marriage equality part of the liberal social agenda, saying, “…American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.”
In 2015, Gorsuch joined a ruling against an incarcerated transgender woman who was denied hormone therapy and feminine clothing in Oklahoma. According to HRC, “The ruling dismissed the prisoner’s claims that the denial of care amounted to cruel and unusual punishment under the U.S. Constitution.”
In addition, many LGBT rights organizations recognize Gorsuch’s ruling in the Hobby Lobby case especially dangerous to LGBT people. HRC notes that the case “asserted that that some private corporations are ‘people’ under federal law and have a right to deny basic healthcare coverage if it violates their religious belief.” The ruling could allow employers to deny queer and trans employees access to hormone treatment, access to birth control and other vital healthcare for LGBT people.
If confirmed, Gorsuch has the potential to see cases that will impact our civil rights for years to come. VICE outlines some of the cases that could affect us in the near future.
Today a number of legal battles are currently playing out in state and federal courts with potential to reach the Supreme Court. These cover issues from LGBTQ employment discrimination to “religious freedom” (often meaning the freedom to discriminate) to public accommodations for transgender people. Queer and trans people at the intersection of multiple marginalized identities will bear their brunt. Precedents will be set, and Gorsuch may be the deciding vote in what those precedents are.
Sarah Warbelow, the legal director of the Human Rights Campaign, told Vice there are three categories where we can see cases reach the Supreme Court. The first category of cases seek to determine whether anti-LGBTQ discrimination is a form of sex discrimination. The second category of cases deal with “religious freedom” and deciding if it’s legal to discriminate against LGBTQ people in the name of “sincerely held religious beliefs.” The third category could be cases that intend to roll back past victories, like marriage equality. VICE notes that the cases already in the works to challenge same-sex marriage don’t stand a chance of overturning the 2015 landmark Supreme Court case on marriage equality but could instead weaken the rights of queer and trans marriages. “…[T]hey’re intended to chip away at smaller elements of the ruling—say, the right to spousal benefits or to name non-biological parents on a newborn’s birth certificate. Queer and trans people won’t lose the right to marry per se, but their unions won’t be as inclusive as those of different-sex couples if marriage equality opponents are successful.”
If confirmed to the Supreme Court, Neil Gorsuch will without a doubt push the Supreme Court even further to the right and negatively impact queer and trans livelihoods for generations.