What Neil Gorsuch Means for the Future of the Supreme Court

Neil Gorsuch and President Trump. Source: AP

On Tuesday evening, President Trump revealed his nominee to fill the open vacancy on the Supreme Court left by the late Justice Antonin Scalia, who passed away unexpectedly last February. The President’s choice, Neil Gorsuch, is considered by many to be a worthy successor to Scalia given his reputation as a dependable conservative jurist within the legal community.

Judge Gorsuch boasts rock-solid credentials that should make even the most obstinate Democratic senator consider his nomination. The son of a former EPA administrator, Judge Gorsuch was originally educated at Columbia and received his law degree from Harvard. He then went on to obtain a Doctor of Philosophy at the University of Oxford. Later on, Gorsuch clerked for two Supreme Court justices — the first, Byron White, was appointed to the Court by President Kennedy in 1962 and is known for having joined the dissent alongside Justice Rehnquist in Roe v. Wade. Gorsuch also clerked for Associate Justice Kennedy, a Reagan appointee and moderate conservative, who is presently viewed as the Court’s “swing-vote” in close decisions. Should he be confirmed, there will once again be a Protestant on the Court (Gorsuch is an Episcopalian), a demographic that had been represented on the Court for the entirety of its history until 2010, when John Paul Stevens retired. With Gorsuch, the Court’s religious composition will include five Catholics, three Jews, and one Protestant. Gorsuch will also be the youngest member of the Court at 49 years old, giving him the opportunity to shape the legal landscape for decades to come.

Gorsuch is a self-described “originalist” and “textualist,” both of which concern the application of strict standards to constitutional interpretation and deal, more or less, with identifying the original meaning of the text. If Gorsuch is nominated, he will become only one of two committed originalists on the Court, along with Justice Thomas, who is almost universally considered to be the Court’s most conservative member. The Court’s three other conservatives — Kennedy, Alito, and Roberts — although in many ways are influenced by originalist principles, allow room for flexibility in their jurisprudence rather than align themselves to any particular doctrine. Gorsuch, however, has made clear his adherence to originalism, which should allay the fears of many conservatives who have been disappointed with several “turncoats” in recent decades — namely, justices like David Souter and Anthony Kennedy, who have become increasingly liberal through the course of their tenure.

It is pertinent to mention Justice Kennedy given his advanced age (80) and reputation as a moderate, both of which factored into the decision to nominate Judge Gorsuch to the bench. With the death of Scalia, Kennedy is the remaining holdover from the Reagan administration, making him the longest currently serving justice and second oldest, behind only Ruth Bader Ginsburg. A conservative with a penchant for liberty, Kennedy has been the deciding swing vote on many of the significant decisions throughout the Obama presidency, which has had sweeping implications for a diversity of issue areas ranging from campaign finance (Citizens United), to abortion (Whole Woman’s Health v. Hellerstedt) to gay rights (Obergefell). In each of these split decisions, Kennedy’s libertarian streak proved to be critical in making the Court swing left, which has been to the consternation of many social conservatives.

If Kennedy were to step down and be replaced by a more orthodox conservative justice, it could potentially give the Court ample leverage to potentially overturn landmark decisions like Roe v. Wade. Gorsuch has a history with Kennedy, which conservatives hope will provide sufficient political capital to sway the Associate Justice to step down over the next four years. If President Trump is deemed competent to select a worthy heir to succeed Kennedy, it may be enough to convince him to step down.

Sooner or later, the court is going to require a facelift given the advanced ages of a third of its current members. It appears Republicans played their cards right after all in holding off President Obama’s selection of Merrick Garland, whose nomination could have conversely thrust the Court in liberal hands. Although the Republicans’ gamble certainly will not help with the issue of polarization, which may ultimately come back to hurt them, for the time being they can take sober satisfaction in knowing the judiciary will very likely be in safe hands for decades to come.

 

For a more complete breakdown of the Supreme Court’s ideological composition, consult this link: http://pdfserver.amlaw.com/nlj/PresNominees2.pdf

About the Author

Paul Ingrassia
Paul Ingrassia (FCRH '17) is enrolled in the interdisciplinary mathematics & economics major on a pre-law track. He also hopes to complete a minor in political science. Paul enjoys writing on a number of subjects including presidential politics, American conservatism, and issues pertaining to economics and public policy. Contact Paul at pingrassia2@fordham.edu.