After a sudden vacancy, the unprecedented refusal to consider a nominee, the inauguration of a new president, a deeply partisan confirmation vote, and the destruction of a Senate tradition, Justice Neil Gorsuch now sits on the U.S. Supreme Court. But it will still take a few months before his full impact on the high court, and the country, will be felt.
Gorsuch was formally sworn-in on Monday, returning the high court to its full strength for the first time since Antonin Scalia died in February 2016. Justices typically retire at the end of the Court’s annual term in June, so that their successors can be confirmed over the summer before the next term begins in the fall—thereby keeping any disruption to a minimum. This time, however, Gorsuch will be joining the court midstream.
The 49-year-old jurist from Colorado is universally expected to become a reliable voice on the Court’s conservative wing. That voice will be pretty quiet at first: He won’t take part in deciding any case for which the other justices already heard oral arguments, unless the Court schedules it for rehearing next fall. But he will hear the final 13 cases of the term during the Court’s April sitting. With only eight justices, the Court largely avoided taking on any blockbuster cases like it has in years past. A notable exception is Trinity Lutheran Church v. Comer, a case that could lead to a major religious-freedom ruling, and one in which Gorsuch could play a big part.
At first glance, Trinity Lutheran is about resurfacing children’s playgrounds. Missouri’s Scrap Tire Program offers state funds to nonprofit groups that replace playground surfaces with recycled rubber. The church applied to the program in 2012 to replace the gravel surface of its playground, but the state rejected its application, citing a clause in Missouri’s state constitution that bars the use of state funds “directly or indirectly, in aid of any church, sect, or denomination of religion.”
Trinity Lutheran Church argued that that provision violates the U.S. Constitution’s First Amendment by discriminating against religious organizations. Missouri countered that because it does not favor or disfavor any church over another, it meets the Establishment Clause’s standards. If the justices side with Trinity Lutheran, states could find it harder to avoid making grants to religious nonprofits with taxpayer money. The case is also being closely watched by school-choice advocates: A ruling limiting the Missouri constitution’s clause could weaken similar provisions in other state constitutions that block public funds from going to private religious-based schools.
Gorsuch’s approach to this case will be closely scrutinized. While serving on the Tenth Circuit Court of Appeals, his record suggested he’d be favorable to broader religious-freedom claims. In Hobby Lobby v. Burwell, a case targeting the Affordable Care Act’s contraceptive mandate, Gorsuch sided with the plaintiff’s view that the mandate burdened the company owners’ religious beliefs. (The Supreme Court subsequently ruled in Hobby Lobby’s favor on review.) Gorsuch also voted for the entire Tenth Circuit to review a three-judge panel’s ruling against the plaintiffs in Little Sisters of the Poor v. Burwell, one of a group of contraceptive-mandate cases heard by the Court in 2016 under the name Zubik v. Burwell. The justices ultimately sent Zubik, Little Sisters, and the other cases back to the lower courts for further hearings.
If a deadlock arises in any case already heard this year by the Court, the justices could schedule it for rehearing next term to include Gorsuch and break the 4-4 tie. One such case where the justices appeared to be sharply divided after oral arguments was Bank of America v. Miami, a racial-discrimination lawsuit challenging bank-foreclosure practices under the Fair Housing Act of 1968. Punting the case to the next term would give Gorsuch the opportunity to weigh in on the scope of a landmark civil-rights law.
His immediate influence won’t be limited to this term’s cases, either. On Thursday, Gorsuch will join the justices’ weekly conferences for the first time. There, the nine justices vote on which cases from lower courts they’ll accept for review and which petitions they’ll deny. Four votes are required to accept a case, even when the Court only has eight members, so his presence will likely restore the influence of the Court’s conservative wing when shaping the docket.
One of those pending cases, Masterpiece Cakeshop v. Colorado Civil Rights Commission, could offer some insight into Gorsuch’s views on the interaction between religious-freedom claims and LGBT rights. The case was brought by Jack Phillips, a baker who cited his religious beliefs when he refused to make a wedding cake for a gay couple. Multiple state courts sided with the Colorado Civil Rights Commission, which found that Phillips violated the state’s public-accommodations laws by discriminating against gay couples.
Masterpiece Cakeshop first reached the Court in December, but the justices haven’t yet announced whether they’ll hear it; Gorsuch’s first conference will be the eighth one at which they’ve considered the case. The Court doesn’t publicly disclose how the justices vote on petitions, but if they’re rejected, each justice can either write a dissent or simply instruct the clerk to add that he or she “would have voted to grant the petition.” If the Court declines to accept the case, many observers will be looking to see if Gorsuch dissents from the denial in some way.
Other pending petitions could offer Gorsuch some early opportunities to weigh in on major constitutional issues and high-profile legal battles. In Peruta v. California, the justices will have a chance to review last year’s major Ninth Circuit ruling that found that there is no constitutional right to carry concealed firearms in public. The Court hasn’t heard a major Second Amendment case since McDonald v. Chicago in 2010, when a 5-4 majority ruled its protections for individual ownership also bind state laws. The justices could also revisit voting rights in North Carolina v. North Carolina NAACP after a federal appeals court struck down state election-law changes last year that it said targeted black voters with “almost surgical precision.”
But the areas where Gorsuch will have the strongest influence are still looming on the horizon. When the high court’s last term began in October 2015, its conservative wing was poised to deliver major rulings on multiple fronts. In Friedrichs v. California Teachers Association, the justices looked set to overturn a major labor-law precedent and sharply curtail public-sector unions’ ability to organize. The conservative majority also appeared ready to rule against the contraceptive mandate in Zubik, a potentially important case on religious freedom and women’s health.
Scalia’s death in February scuttled those rulings and others, forcing the Court into a 4-4 deadlock in Friedrichs and in another case on Barack Obama’s executive orders on immigration. (President Trump’s victory in November will likely render the latter case moot.) The justices publicly punted on Zubik by sending it back to the lower courts for further review, but the Court’s strange behavior ahead of the decision strongly suggested a 4-4 split behind the scenes. With the Court’s conservative wing once again at full strength, those cases’ underlying issues will likely become the first of many in which Gorsuch plays a pivotal role for decades to come.
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