April 10, 2017
It was the most significant swearing in since Donald Trump's. When Neil Gorsuch put his hand on the Bible to become the 113th Supreme Court justice in U.S. history, Antonin Scalia, in that great cloud of witnesses, was no doubt smiling. His 49-year-old replacement is everything the longtime originalist could hope for -- a humble, esteemed, and deferential jurist whose legacy will almost certainly outlast the president who appointed him.
For millions of Americans who put the Court at the top of their concerns last November, it was a moment of extraordinary relief. To them, the election of President Trump was all leading up to this sunny morning, when the balance of the Court would finally tip back in the favor of the Constitution. For the entire nation, it was a powerful image of the new president keeping the most important promise of his young term. Surrounded by his wife and two daughters, Gorsuch became the first justice to be sworn in by his former boss, Anthony Kennedy. Now, the clerk-turned-colleague will have his own seat on the bench he served at one of the most critical times in our nation's history.
Fortunately for the rookie, he won't have to wait long to get his feet wet as he'll jump right into a busy spring of arguments. Although Gorsuch won't have a vote on the cases argued before he was confirmed, at least a dozen others await the Court -- which will be at full strength for the first time in more than a year. In the meantime, the newest member of the bench will have to find his place among the team of nine. "The junior-most justice starts off at the bottom of the heap, sits on a far wing of the bench and speaks last at conference." And, as CNN points out, Gorsuch will have one duty the others do not: answering the door. "It's a job that Justice Elena Kagan, confirmed to the bench in 2010, is likely relieved to relinquish. She lightheartedly described the job qualifications at a Princeton appearance in 2014. 'The junior justice has to answer the door,' she began. 'I mean literally, if there is a knock on the door, and I don't hear it -- there will not be a single other person who will move, they will just all stare at me until I figure out 'oh, I guess somebody knocked on the door.'"
Plenty of important issues will come knocking too, and conservatives can be grateful that Gorsuch will be answering. Religious liberty will headline the spring docket, with key cases like Trinity Lutheran Church of Columbia, Inc. v. Pauley. While the Court hasn't yet agreed to hear them, multiple cases are pending before the Court that involve "Blaine Amendments" from several state constitutions which are being used to discriminate against religious institutions in the use of state resources. Like in Trinity Lutheran, the issue in Douglas County School District v. Taxpayers for Public Education and Colorado State Board of Education v. Taxpayers for Public Education is whether such state level discrimination is barred by the Constitution. The Court's decision in Trinity Lutheran will significantly affect the outcome in these cases, and Justice Gorsuch would likely side with the religious institutions anyway.
The justices are also currently considering whether to accept several other important religious liberty cases. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the issue is whether a state can force a small business owner (Jack Phillips) to bake a cake for a same-sex wedding due to sexual orientation nondiscrimination laws, or whether the baker's First Amendment free speech and free exercise rights protect his ability to opt out of this process. Even if the Court doesn't take up this case, we know the issue isn't going away. There are several small business owners who have already been penalized by different states for refusing to use their talents to further same-sex weddings. Justice Gorsuch will be poised to consider this issue, and we're glad he has a strong record of protecting religious liberty. Additionally, the Court will consider whether to hear Sterling v. United States, which will decide whether the Religious Freedom Restoration Act protects a service member's right to display Bible verses at a military workstation.
In the future, we can expect to see more abortion regulation and healthcare conscience/religious liberty issues surface at SCOTUS, along with the question of whether sex discrimination includes "gender identity" and/or "sexual orientation" discrimination. When that time comes, we are grateful that we will have a strong originalist in Justice Gorsuch on the bench. For more of an assessment of how his presence will affect the Court, see our prior briefing on this issue.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.