Gorsuch's First Year: An Anniversary Worth Celebrating
April 10 is a day worth celebrating: It marks Justice Neil Gorsuch’s first anniversary on the United States Supreme Court. Gorsuch has proven himself to be precisely the type of person President Trump pledged he would nominate to the bench, someone in the mold of the late Justice Antonin Scalia: an impartial judge who applies laws as they are written and shows an abiding respect for the rights guaranteed by the Constitution. Moreover, he has been an articulate spokesman for this approach to judging, showing strength and integrity and achieving a remarkable reputation for a first-year justice.
Gorsuch’s decisions so far show a firm commitment to protecting our First Amendment rights. This is clear from what was perhaps the highest profile case his tenure so far, Trinity Lutheran Church v. Comer. In this case, a church fought a Missouri policy that denied certain public benefits to religious organizations. Gorsuch joined the majority in the 7-2 ruling that the state couldn’t deny the benefit merely because Trinity Lutheran Church is a house of worship. But Gorsuch went further to write a concurring opinion, joined by Justice Clarence Thomas, suggesting that the court should recognize more robust protections for religious liberty. He found unconvincing the court’s distinction “between laws that discriminate on the basis of religious status and religious use,” and suggested this line — if it could even be drawn — was irrelevant to the Free Exercise clause of the First Amendment, which “guarantees the free exercise of religion, not just the right to inward belief (or status).”
During oral arguments for several important cases still awaiting the court’s decision, the newest justice also expressed concern about threats to free speech. In oral arguments for NIFLA v. Becerra, Gorsuch suggested that a California law requiring crisis pregnancy centers to advertise free or low-cost abortion “requires [the state] to compel speech from someone else — that implicates First Amendment concerns,” adding that “this Court is normally pretty jealously protective of speech.” Similarly, in arguments for Masterpiece Cakeshop v. Colorado Civil Rights Commission this past December, Gorsuch was skeptical not only of the state’s ability to force a baker to use his skill to design cakes celebrating same-sex marriages, he also challenged the state’s requirement that the bakery owner lead his employees in sensitivity training. He asked, “Why isn’t that compelled speech and possibly in violation of his free-exercise rights? Because presumably he has to tell his staff, including his family members, that his Christian beliefs are discriminatory.”
Much like Scalia, Gorsuch has shown himself to be a proponent of Second Amendment rights. When the court declined to hear Peruta v. California, thereby leaving in place restrictive concealed-carry laws, Gorsuch joined Thomas in dissent, proclaiming that the court’s denial of cert “reflects a distressing trend: the treatment of the Second Amendment as a disfavored right.” That point is especially important at a time when activists are trying to persuade policymakers to enact increasingly restrictive gun laws.
Property rights don’t grab the same headlines as speech and gun rights, but they, too, face a danger this term. At stake in The Oil States v. Greene’s Energy Group is the constitutionality of an administrative tribunal’s power to revoke patent claims. In oral arguments, Gorsuch observed that “there’s an abundance of law going back 400 years” making clear that once a patent is granted, “it’s a private right belonging to the inventor.” With Chief Justice John Roberts, he worried that current policy threatened the Fifth Amendment’s protection of private property, enshrined in what is known as the takings clause: “nor shall private property be taken for public use without just compensation.”
In addition to his clear and consistent defense of specific rights guaranteed by the Constitution, Gorsuch has also been an articulate spokesman for originalism and textualism, the approaches to the law that Scalia was crucial in returning to the mainstream.
During a speech at Stockton University in New Jersey, Gorsuch explained, “When I’m interpreting the Constitution, I’m looking at sources that are external to myself. ... I look to what the Founders understood, what the original public meaning of that document was, and I take great care to pay attention to the words on the page.” Or as he said at the Federalist Society’s Lawyers Convention Annual Dinner last November, “Originalism has regained its place at the table of constitutional interpretation, and textualism in the reading of statutes has triumphed. And neither one is going anywhere on my watch.”
As attorney general under President Reagan, I worked hard to assist the president in nominating federal judges who understood that their job was to interpret the laws as written, not as they might wish they’d been written. As Gorsuch has said, “The duty of a judge is to say what the law is, not what it should be.” This simple distinction separates good judges from activists wearing robes. I’m gratified that the current administration is carrying this torch more than 30 years later. Gorsuch should be applauded for his commitment to the Constitution and the rule of law — as should President Trump for keeping his word on his Supreme Court nomination.