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Judge Gorsuch's Writings Signal He Would Be A Conservative On Social Issues

Mar 16, 2017
Originally published on March 21, 2017 10:19 am

With the Senate Judiciary Committee set to open hearings on the nomination of Judge Neil Gorsuch to the U.S. Supreme Court, the game of confirmation cat and mouse is about to begin. Senators will try to get a fix on Gorsuch's legal views — and the nominee will try to say as little as possible.

Supreme Court scholars and practitioners on the right and left may disagree about whether they want to see Gorsuch confirmed, but in general there is little doubt about the nominee's conservatism. Indeed, his conservative pedigree is the reason he was picked.

"On issues like abortion and affirmative action and gun rights and states' rights, we can expect him overall to be a reliable conservative vote and someone who is going to forcibly and eloquently put forward conservative positions on the court," predicts Richard Hasen, professor of law and political science at the University of California, Irvine.

Not that Gorsuch has ruled on all these issues. He has not. But the legal road signs are there.

Gorsuch, for instance, has never ruled directly on an abortion question, but he has ruled on questions involving contraception and public funding for Planned Parenthood — unrelated to abortion. And in none of these cases has he sided with advocates of birth control or abortion rights.

Setting the Supreme Court up for Hobby Lobby ruling

One of his most controversial opinions involved Hobby Lobby, a chain of craft stores that employs 13,000 full-time employees, most of them women. The company challenged the federal law requiring for-profit corporations to provide health insurance plans that cover birth control.

Gorsuch and a majority of the 10th Circuit Court of Appeals ruled the corporation had a religious right not to provide birth control coverage. A sharply divided U.S. Supreme Court would later agree, ruling for the first time that certain for-profit corporations have protected religious rights.

What makes this case particularly interesting is a concurring opinion that Gorsuch wrote about the corporate owners' rights.

"All of us face the problem of complicity," he wrote. "All must answer ... to what degree we are willing to be involved in the wrongdoing of others." Here, he noted, the owners believe that for their company providing insurance that includes coverage for birth control drugs or devices "violates their faith."

In many ways, he continued, "this case is a tale of two statutes." One, the Affordable Care Act, compels the owners to provide such inclusive health coverage. The other, the Religious Freedom Restoration Act, "says they need not." And the "tie-breaker," Gorsuch said, is the religious protection law because it is a "super-statute" that trumps others, except in special circumstances.

Debate over extent of religious freedom

Gorsuch critics disagree with his assessment.

"To what extent do people with religious beliefs have to follow the law if they believe it violates their conscience? What is the outer limit of that?" asks Caroline Fredrickson of the liberal American Constitution Society. "I think that's a potentially very frightening direction for the law to go."

What if, for example, a hotel or restaurant owner has a religious belief that bars serving African-Americans or non-Christians or gay people?

Indeed, there are a variety of such legal clashes working their way up to the Supreme Court right now. One case pending before the court tests whether a bakery can refuse to make a cake for a same-sex wedding.

Melissa Hart, director of the University of Colorado's Byron R. White Center for the Study of American Constitutional Law, knows and respects Gorsuch, who also teaches at the school in Boulder. Still, she understands the wariness about his views on religious freedom.

"I think it's reasonable for people to look at Hobby Lobby and, for those who support marriage equality, to be concerned," she says.

But Mark Rienzi of the Becket Fund for Religious Liberty says that the Hobby Lobby decision is in line with the religious freedom law that Congress passed by overwhelming margins in 1993.

"It says that the baseline rule in America will be that we respect religious diversity and, for the most part, we're not going to force people to violate their religious beliefs unless we have a really good reason to," Rienzi explains.

Rienzi contends that there are other ways women can get health coverage for birth control outside of their employer's health plans. But women's rights advocates, backed by health care experts, say that such coverage in reality is not available, and they note that for most women of childbearing age, contraception is a substantial regular health expense.

More confirmation fodder

Other Gorsuch decisions relating to religion will undoubtedly come up in next week's confirmation hearings; among them, a vigorous dissenting opinion Gorsuch gave concerning a series of 12-foot crosses along the roadside on public land. The Utah Highway Patrol Association wanted to erect the crosses to memorialize fallen troopers.

Gorsuch's colleagues on the 10th Circuit ruled against the crosses because a reasonable observer would take them as a sign of a state endorsement of Christianity. The Supreme Court declined review, leaving in place the decision that forbids the crosses.

Although Gorsuch has not written directly about abortion, he did write a book called The Future of Assisted Suicide and Euthanasia, in which he says that "human life is fundamentally and inherently valuable" and "the intentional taking of human life by private persons is always wrong." But he describes the court's decisions on abortion in a straightforward way, without adding almost anything in the way of a personal opinion.

The book, academic in tone but lucid in presentation, concludes that there is no necessary connection between the right to abortion and a right to assisted suicide. It does, however, quite clearly subscribe to the notion, adopted in most state laws, that individuals have the right to hasten their own deaths by refusing nutrition, water or medical treatment.

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AUDIE CORNISH, HOST:

President Trump's pick for the U.S. Supreme Court goes before the Senate Judiciary Committee for his confirmation hearing next week. For more than 10 years as a federal appeals court judge, Neil Gorsuch has been writing judicial opinions - some in the majority, some in the dissent, all opinions that strongly hint at what kind of justice he would be. NPR legal affairs correspondent Nina Totenberg takes a closer look at the judge's legal views.

NINA TOTENBERG, BYLINE: From the get-go, Donald Trump made clear he would nominate someone to the Supreme Court in the mold of Justice Antonin Scalia, the conservative justice whose seat has remained vacant since his sudden death more than a year ago. Those who have read Judge Gorsuch's opinions expect him to fulfill that billing. Here's Richard Hasen, professor of law and political science at the University of California, Irvine.

RICHARD HASEN: On issues like abortion and affirmative action and gun rights and states' rights, we can expect him overall to be a reliable conservative vote and someone who's going to forcefully and eloquently put forward conservative positions on the court.

TOTENBERG: Not that Gorsuch has ruled on all of these issues - he has not. But the legal road signs are there, and indeed they are among the reasons he was picked. Gorsuch, for instance, has never actually ruled directly on an abortion case, but he has ruled on questions involving contraception and public funding for Planned Parenthood, funding unrelated to abortion. On this question, he was in dissent, ruling for a state governor's power to cut off federal funding for women's health services provided by Planned Parenthood.

One of his most controversial opinions involve the Hobby Lobby chain of craft stores which employs 13,000 workers, most of them women. The company refused to comply with the federal law requiring for-profit corporations to provide health insurance plans that cover birth control. Gorsuch, in a majority of the appeals court, ruled that the corporation had a religious right not to provide birth control coverage. A sharply divided U.S. Supreme Court would later agree, ruling for the first time that certain for-profit corporations have religious rights.

What makes this case particularly interesting is a concurring opinion that Gorsuch wrote about the corporate owners' rights. All of us face the problem of complicity, he wrote. All must answer to what degree we are willing to be involved in the wrongdoing of others. Here, he noted, the owners believe that for their company providing insurance that includes coverage for birth control drugs or devices violates their faith.

In many ways, he continued, this case is a tale of two statutes. One, the Affordable Care Act, compels the owners to provide such inclusive health coverage. The other, the Religious Freedom Restoration Act, says they need not. And the tiebreaker, Gorsuch said, is the religious protection law because it is a, quote, "super-statute" that trumps others except in special circumstances.

CAROLINE FREDRICKSON: What does that mean, and how far does that go?

TOTENBERG: Caroline Fredrickson is president of the liberal American Constitution Society.

FREDRICKSON: To what extent do people with religious beliefs - do they have to follow the law if they believe it violates their conscience? What is the outer limit of that?

TOTENBERG: What if, for example, a hotel or restaurant owner has a religious belief that bars serving African-Americans or non-Christians or gay people? Indeed there are a variety of such legal clashes working their way up to the Supreme Court right now. Melissa Hart, director of the Colorado University Constitutional Law Center, is a Gorsuch admirer, but...

MELISSA HART: I think it's also reasonable for those who support marriage equality to be concerned.

TOTENBERG: But Mark Rienzi of the Becket Fund for Religious Liberty says that in some ways, that is Congress' command in the law it passed overwhelmingly in 1993.

MARK RIENZI: It says that the baseline rule in America will be that we respect religious diversity. And for the most part, we're not going to force people to violate their religious beliefs unless we have a really good reason to.

TOTENBERG: He says that the notion of wrongful complicity is more important than the rights of employees to have health insurance even though for most women of child-bearing age, contraception is their largest regular health expense.

Other Gorsuch decisions relating to religion will undoubtedly come up in next week's confirmation hearings - among them, a vigorous dissenting opinion concerning a plan by the Utah Highway Patrol Association to erect a series of 12-foot crosses along the roadside on public land as a memorial to fallen troopers. Judge Gorsuch's colleagues on the appeals court ruled that the crosses had to go because a reasonable observer would take them as a sign of the state's endorsement of Christianity. The Supreme Court declined review, leaving in place the decision forbidding the crosses.

Although Gorsuch has not written directly about abortion, he did write a book called "The Future Of Assisted Suicide And Euthanasia," terminology that is offensive to advocates of so-called death-with-dignity laws. In the book, he writes that human life is fundamentally and inherently valuable, and the intentional taking of human life by private persons is always wrong. But he describes the court's decisions on abortion in a straightforward way without adding almost anything in the way of a personal opinion.

The book, academic in tone but lucid in presentation, seems to conclude that there is no necessary connection between the right to abortion and a right to assisted suicide. It does, however, quite clearly subscribe to the notion adopted in most state laws that individuals have the right to hasten their own deaths by refusing nutrition, water or medical treatment. Nina Totenberg, NPR News, Washington.

[POST-BROADCAST CORRECTION: In the audio of this story, we mistakenly report that Mark Rienzi says the notion of complicity is more important than the rights of employees to have health insurance. Rienzi did not say that. Rienzi does believe there are other ways women can get health coverage for birth control outside of their employer's health plans.] Transcript provided by NPR, Copyright NPR.