Wednesday, August 2, 2017

Gorsuch, Part 6: The Now-Justice Like the Then-Judge

We've seen how Neil Gorsuch's record as an appeals court judge was ultra-conservative. Reviewing those cases where he stuck his neck out to disagree publicly with his colleagues by writing a dissenting opinion--presumably because he felt strongly that his colleagues were wrong on an important issue--reveals a clear ideological pattern. (See Part 4 and Part 5.)

In civil cases, he repeatedly sided against the worker and for the employer; sided against consumer protection; sided against Planned Parenthood; sided against the separation of church and state. In criminal cases, he argued that correction and police officers should be immune from liability despite majority findings that the vindicated suspects' constitutional rights had been violated; and he argued that convictions should be upheld despite findings that the defendants' lawyers were ineffective, or that Miranda rights were violated, or that the incriminating evidence was unconstitutionally obtained.

Perhaps most notable (and in my view most worrisome), is that even when Gorsuch sided with the defendant, he set forth the very narrow, literalist view of the 4th Amendment that it does not prohibit unreasonable searches or seizures. Rather, it only prohibits unreasonable searches and seizures if they involve one of the few particular items mentioned in that amendment--i.e., "persons, houses, papers, and effects." But nothing else. This is a view, by the way, based on long-overruled decisions of the Supreme Court from an earlier era. This also just happens to be the same narrow, literalist view of search and seizure protections taken by Gorsuch's hero, the late Justice Antonin Scalia, to whose vacancy he was appointed. And it is the view condemned in recent years by, among others, conservative Justice Samuel Alito, whose separate concurring opinion in U.S. v. Jones, 565 US 400 [2012] exposed the dangers of that view which was embraced in Scalia's opinion in that case.

Sooooooo, has Gorsuch's record on the federal appeals court been reflected in his record to date at the Supreme Court? He has been a justice for only a short time. Confirmed by the Senate in April, he has only participated in those cases which the Court considered as it was wrapping up its term. And yet....

Let's take a look.

Death Penalty
McGehee v. Hutchinson: In Gorsuch's first public vote, he sided with execution. He broke the Court's 4-4 tie to allow Arkansas to proceed with several executions that the state wanted to complete before its supply of lethal drugs expired. Each of the death inmates had already been imprisoned for 10 years; a few for more than 20. Each of them had legal claims challenging their convictions or sentences or even insisting on innocence. State and federal courts at various stages of the litigations had found some merit in their claims. But the Supreme Court declined to review the claims and, with Gorsuch's vote making a bare majority, approved the executions.

Campaign Finance
Republican Party of Louisiana v. FEC: The Supreme Court majority summarily affirmed--in a four word entry--the decision of the court below to uphold a particular provision of the federal campaign finance law (the Bipartisan Campaign Finance Reform Act of 2002, aka “McCain-Feingold”). The provision in question prohibits the use of unregulated contributions made to political parties for federal election activities. Gorsuch, together with Justice Thomas, noted his disagreement with the majority's disposition of the case and would have proceeded with the full review process.

Indigent Criminal Defense
McWilliams v. Dunn: The Alabama courts had denied the death penalty defendant the assistance of a mental health expert. By a typical 5-4 ideological split, with Justice Kennedy casting his vote with the liberals, the Court held that indigent defendants who have raised serious mental health issues do have such a right, and it sent the case back to the lower courts to apply the law correctly. Gorsuch joined Justice Alito's dissenting opinion, taking the position that the decision of the state courts should have been affirmed, because the Supreme Court had not previously "clearly establish[ed] that a defendant is entitled to an expert."

Employee Grievance
Perry v. Merit Systems Protection Board: A 7-2 majority of the Court ruled that an employee could seek judicial review of his "mixed" grievance (i.e., discrimination underlying a civil service grievance) in federal district court; significantly, such a court is not required to defer to an administrative ruling which, in this case, was adverse to the employee. Gorsuch dissented. In an opinion joined by Thomas, Gorsuch argued that an employee seeking judicial review of an adverse administrative ruling on his civil service grievance can do so only in the Federal Circuit Court. And, again here's the significance: that court must affirm the employee-adverse administrative ruling unless it is utterly irrational.

Trump's Travel Ban
Trump v. Int'l Refugee Asst Project: The Court unanimously agreed to review the constitutionality of President Trump's executive order that suspended the entry of certain foreign nationals into the United States. At the same time, by a  6-3 majority, the Court mostly upheld the orders of the courts below that had temporarily barred enforcement of the executive order. The Court did, however, partially reverse the courts by allowing the executive order to be enforced "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States." Gorsuch joined Thomas's dissenting opinion, arguing that the executive order should be allowed to be enforced in its entirety--i.e., including its enforcement against those with "a close familial relationship" with an American--because the "Government’s interest in preserving national security" outweighed the resulting hardships to affected individuals.

Church-State Separation
Trinity Lutheran Church v. Comer: By a 5-2-2 majority, the Court held that Missouri engaged in unconstitutional religious discrimination when it denied the church's request for funding for its playground--which funding was generally available to non-religious institutions. [Missouri is one of those state's with an strict (originally anti-Catholic immigrant) prohibition against aiding religious institutions.] Chief Justice Roberts' majority opinion, in a footnote, underscored that "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination." Gorsuch, joined by Thomas, wrote a separate concurring opinion disassociating himself from that limiting footnote. Anticipating other applications of law to religious institutions, he wrote that "general [constitutional] principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else." [Hmmm, such as laws requiring equal treatment of gays and lesbians and same-sex married couples, even in the face of religious objections? And see immediately below!]

Gay Rights
Pavan v. Smith: This case involved Arkansas's refusal to include the name of a biological mother's same-sex spouse as a parent on the child's birth certificate. By a 6-3 majority, the Court summarily granted review and reversed on the ground that, in accord with the Court's 2015 decision in Obergefell v. Hodges, same-sex married couples are equally entitled to “the constellation of benefits that the State has linked to marriage.” Gorsuch dissented. In his opinion joined by Thomas and Alito, Gorsuch insisted that "nothing in Obergefell indicates that a birth registration regime based on biology...offends the Constitution."

Gun Rights
Peruta v. California: The Court declined to review a decision of the 9th Circuit that “the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” The California law, which generally prohibits concealed guns in public places, was thus upheld. Gorsuch joined Thomas's dissent. The dissenters complained that the majority's decision not to take the case "reflects a distressing trend: the treatment of the Second Amendment as a disfavored right." They were also unequivocal about their position on the California law. As Thomas concluded for himself and Gorsuch: "the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right."

Well there it is. By his votes and separate opinions in these ideologically-laden cases, Neil Gorsuch has in short order left little doubt about his strong ideological leanings. And beyond ideology or political philosophy or jurisprudence, consider his partisan bent. How would a typical Republican politician vote on these issues? Not a judicially retrained judge or strict constructionist or believer in federalism (i.e., states' rights) or any other actual, coherent judicial or political philosophy. But a partisan Republican.

What's the common thread through his positions on issues as varied as gun rights and gay rights, Trump's travel ban and campaign finance, worker rights and rights of the accused? That's right, connect the dots. His record on the Supreme Court already screams "ultra-conservative partisan Republican."

Some--like the Federalist Society and the Heritage Foundation and other very conservative groups and individuals who recommended him to Trump--undoubtedly are pleased with Justice Gorsuch's record thus far. Others, more moderate or liberal, much less so. But whether pleased or not with Gorsuch's Supreme Court record to date, it is undeniably what it is: politically partisan, conservative Republican.