Mandi Ancalle is General Counsel for Government Affairs at Family Research Council. This article appeared in The Federalist on March 24, 2017.
In the first two days of the Supreme Court confirmation hearings, senators pressed nominee Neil Gorsuch on a variety of issues that may be before the court, from antitrust lawsuits to campaign finance.
Sen. Amy Klobuchar (D-Minn.) promised to get into the weeds on antitrust litigation on the third day, but Americans didn’t vote for Donald Trump because he promised to appoint to the Supreme Court an expert on antitrust law. Americans voted for President Trump because he promised to appoint a jurist who will uphold the rule of law because they’ve seen the Supreme Court issue many activist decisions regarding life, religious freedom, and same-sex marriage.
In regard to the life issue, attorneys across the country must have scratched their heads when Sen. Dianne Feinstein (D-Calif.) referred to Roe v. Wade as “super precedent.” That’s not a term I ever heard in law school. Gorsuch, unlikely to have heard that term before Tuesday either, politely replied that if she meant Roe had been affirmed a number of times, that was true.
For Democrats, ‘Precedent’ Is a Code Word’
In fact, a number of senators asked about precedent and respect for the rule of law. Klobuchar lamented she was engaging on those subjects because “several past nominees have made this promise about respecting precedent before this committee … then later became justices with a lifetime appointment and they overturned precedent.” Gorsuch responded by admitting Citizens United did, in part, overrule precedent. At that moment Sen. Sheldon Whitehouse (D-R.I.) appeared to smirk, as though it was a “gotcha” moment for Gorsuch.
Democrats are apparently aiming to pin Gorsuch’s values down. After all, in the progressive judicial philosophy, the personal views of a judge indicate how he will rule in cases. Gorsuch challenged that theory on numerous occasions, saying that good judges will not always like their holdings, and will stick to the rule of law. He said, “You start with the strong presumption in favor of precedent. That’s the anchor of the law, a starting point, but there are instances when the court may appropriately overrule precedent after considering other factors.”
Gorsuch does seem ready and willing to overturn the Lemon v. Kurtzman ruling. Lemon established a test for evaluating Establishment Clause cases which says: 1. Government action must have a secular purpose; 2. The principal or primary effect of the government action must not advance or inhibit religion; and, 3. The government action must not result in the government being “excessively entangled” with religion.
In an exchange with Sen. John Cornyn (R-Tex.), Gorsuch lamented that the Lemon test is difficult to apply. He said, “It proved a difficult test according to six justices at least, having expressed dissatisfaction with the test, never at the same time. So, Lemon endures. I can tell you as a lower court judge, trying to faithfully do what the Supreme Court wants us to is a bit of a challenge in this area. We struggle.”
Gorsuch Believes in Limits on His Own Power
Gorsuch appeared much more confident in discussing how to apply the federal Religious Freedom Restoration Act (RFRA). He easily distinguished RFRA jurisprudence from that of the First Amendment. In a discussion with senators Richard Durbin (D-Ill.) and Chris Coons (D-Del.), he easily rehearsed the four prongs of RFRA: the requirements that there be a sincerely held religious belief, that it be under a substantial burden, that to justify that burden, the government must have a compelling interest in burdening that religious belief, and that the government action must be narrowly tailored to achieve the compelling interest.
Gorsuch readily defended his rulings in Little Sisters and Hobby Lobby and in response to Durbin’s questions noted that he has applied religious freedom protections “to Muslim prisoners in Oklahoma who [sought Halal] meals [and] to Native Americans who wish[ed] to use an existing sweat lodge in Wyoming.” He also noted that the Supreme Court of the United States agreed with his Little Sisters and Hobby Lobby rulings.
In response to a number of Democratic senators, Gorsuch noted that Congress defined “person” to include closely held corporations, and that if Congress doesn’t like that definition, and wants to limit RFRA’s application to “natural persons,” Congress has the authority to do so. It is the authority of Congress to create policy and to create law. He also readily referred to the separation of powers on a number of occasions, and certainly seemed to grasp the limited nature of the power of judges.
This is something that a majority of justices on the Supreme Court did not grasp as they created a supposed right to same-sex marriage in the summer of 2015. Durbin sought to get to the bottom of Gorsuch’s views of the LGBT activist agenda. In an exchange regarding equal protection claims, Durbin said, “what about the LGBTQ,” to which Gorsuch responded, “What about them, they’re people?”
This is what conservatives have argued for decades—that people who identify as LGBTQ or otherwise are not in need of special rights and privileges, but they are created in the image of the Creator with human dignity, just like everyone else. How Gorsuch will rule in claims related to same-sex marriage and gender identity remains to be seen. He did say Obergefell, the same-sex marriage ruling, is “settled law,” but it is likely he understands “settled law” as he understands precedent, “a starting point,” binding until it is no longer.
Judge Gorsuch has done an incredible job of answering difficult questions with ease. He should be confirmed to fill the seat of the late Justice Antonin Scalia.