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The Scalequel: Trump’s Supreme Court Pick Will Make Originalism Great Again


Federal appeals-court Judge Neal Gorsuch, President Donald Trump’s nominee for the Supreme Court, is not as zealous as some of the other judges Trump considered for the seat, but has a solidly right-wing record on issues such as birth control and government regulations. (In short: he is not as fanatical as William Pryor.)

Gorsuch is probably best known for his 2013 opinion in the Sibelius v. Hobby Lobby case. In a decision upheld by the Supreme Court in 2014, he argued that it would violate chain-store owners’ religious freedom if they had to give their employees health insurance that paid for birth control.

The Affordable Care Act’s mandate that employers provide such insurance, Gorsuch wrote, compelled Hobby Lobby’s owners “to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg,” while their “religion teaches them that the use of such drugs or devices is gravely wrong.”

The chief judge in the case responded that there are “factual disputes regarding the actual potential of the challenged drugs to destroy a fertilized human egg.”

While Gorsuch has not ruled directly on any cases involving abortion, the Hobby Lobby case was not the only one where he opposed funding birth control. Last October, he unsuccessfully insisted that the 10th Circuit should reconsider its ruling that Utah had to continue funding Planned Parenthood pending the outcome of its lawsuit against Governor Gary Herbert for cutting it off.

Gorsuch, 49, has been a judge on the 10th Circuit Court of Appeals in Denver since 2006. He says his idol is the late right-wing Justice Antonin Scalia.

That does not bode well for his stance on labor-law issues. Scalia’s death last March prevented a decision that would have prohibited public-employee unions from collecting “fair-share fees” from nonmembers they are legally required to represent. Similar cases are already proceeding through the lower federal courts.

The Service Employees International Union, the Communications Workers of America, and National Nurses United all urged Senate Democrats to filibuster the nomination. The nurses’ union said Gorsuch had gone against workers in 11 of the 15 employment-law decisions he was involved in.

“Judge Gorsuch has a record of aligning with corporate interests,” the CWA said in a statement. “In cases involving worker protection agencies like the National Labor Relations Board or the Occupational Safety and Health Review Commission, whose enforcement mechanisms are already too weak to be effective, Judge Gorsuch criticized the ‘remarkable powers’ of such agencies.”

Last August, when the 10th Circuit upheld a Department of Labor ruling that a truck driver had been unjustly fired in 2009 for abandoning his trailer after its brakes froze, Gorsuch dissented. The trucker had unhooked the stuck trailer and driven off after waiting for more than three hours by the side of a highway in subzero temperatures in a cab with a broken heater. But federal law, Gorsuch wrote, “only forbids employers from firing employees who ‘refuse to operate a vehicle’ out of safety concerns”—and “the trucker in this case wasn’t fired for refusing to operate his vehicle.”

No law he knew of gives employees the right to operate their vehicles in ways their employers forbid, he said. “Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law,” he added sarcastically, echoing Scalia, who is known for his biting legal opinions. “But it isn’t there yet. And it isn’t our job to write one.”

Gorsuch, however, may have a stronger concern for privacy and defendants’ rights than would be expected from a judge picked by an authoritarian. He has ruled searches illegal in three cases, one involving guns and methamphetamine and the other two possession of child pornography.

On the other hand, he twice ruled against people alleging excessive force by police. In 2013, he dismissed wrongful-death and excessive-force lawsuits against a Colorado police officer who’d shot a 22-year-old man in the back of the head with a Taser as he was trying to run away from a marijuana field, killing him. Gorsuch wrote that Supreme Court precedent precluded claims for damages against individual officers except for “the plainly incompetent or those who knowingly violate the law.”

The other two judges concurred, but said there was reasonable evidence that the officer had used excessive force and violated the victim’s constitutional rights. One noted that the Taser training manual specifically warned, “DO NOT AIM AT HEAD/THROAT UNLESS SITUATION DICTATES A HIGHER LEVEL OF INJURY RISK IS JUSTIFIED.”

Like Scalia, Gorsuch claims to be an “originalist,” someone who will interpret the Constitution based on the way it was written and not distort it to justify their use of litigation for social engineering. This is a right-wing marketing slogan dating back to the late 1960s, when President Richard Nixon was trying to turn the Supreme Court away from decisions such as Miranda v. Arizona in 1966, which held that the Fifth Amendment’s guarantee against forced self-incrimination required police to tell arrested suspects, “you have the right to remain silent.” Nixon called judges who made decisions he liked “strict constructionists,” hewing to the Constitution, while those who didn’t were “judicial activists.”

In the 2003 Lawrence v. Texas decision, Scalia’s homophobia trumped what the majority saw as clear constitutional principles. By a 6-3 margin, the Court ruled that sodomy laws violated the Fourth Amendment’s protections against unreasonable search and seizure, because the only way to enforce them was to send police into people’s bedrooms. Scalia’s dissent argued that there was no “fundamental right” to engage in “homosexual sodomy”—and during oral arguments, he said that it would be constitutional for states to outlaw masturbation.

The Dred Scott decision of 1857 could be considered “originalism” carried to its logical extreme. Chief Justice Roger B. Taney, ruling that slaves were property with no human rights, wrote that the framers of the Constitution would never have countenanced freeing Scott — because they believed black people were “so far inferior, that they had no rights which the white man was bound to respect.”

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