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Neil Gorsuch’s first term fulfilled conservatives’ wildest dreams

by Christina Sterbenz
Jun 28 2017, 2:11pm

Neil Gorsuch accomplished a lot during his first term as a Supreme Court justice.

He scolded some of his colleagues for ignoring the Second Amendment, issued a surprising number of separate opinions, and aligned himself with the court’s most right-wing justice, Clarence Thomas, time and again.

That bold, conservative attitude defined Gorsuch’s inaugural weeks on the bench. While measured and vague responses during his confirmation hearing led many to question the conservative chops Donald Trump’s nomination promised, legal experts say Gorsuch all but eliminated those worries for Republicans and confirmed them for liberals.

To a stunning extent, Gorsuch in his first months on the court has shown himself to be at the far right of the justices, more than I think even his opponents expected,” said Erwin Chemerinsky, dean and professor of law at the University of California at Irvine School of Law.

Gorsuch particularly revealed his roots on Monday, the last day of the Supreme Court’s current term. He alone joined Thomas in a scathing dissent of the court’s decision to reject a challenge out of California about the right to carry guns outside of the home. The High Court hasn’t heard a Second Amendment case in seven years, and in their opinion, the two justices called its treatment of the Second Amendment as a “disfavored right” “a distressing trend.”

“Another conservative anchor”

In fact, in all 15 cases Gorsuch weighed in on during his first term, he sided with Thomas, who identifies as an originalist, just as Antonin Scalia, whom Gorsuch replaced, did. Originalists rely on a unchanging and strict interpretation of the Constitution, instead of considering it a “living document.” During his time on the 10th Circuit, Gorsuch also embraced originalism.

“Gorsuch is likely to be another conservative anchor of the court,” constitutional law professor at the University of California, Los Angeles Adam Winkler said. “It’s not a short term strategy but a reflection of his clearly held views about the law.”

“He does not have a rookie’s fear of asserting his strong beliefs.” — Adam Winkler

In his notable opinions this term, Gorsuch wrote a dissent to the court’s decision to strike down an Arkansas law that prevented same sex couples from listing both parents names on their child’s birth certificate. Gorsuch disagreed with the way the court reversed the decision, called a “summary reversal,” which happens when a lower court clearly erred based on well-settled case law. But Gorsuch didn’t think the state’s argument for the necessity of tracking biological lineage went against prior cases, hammering home the rigid interpretation of precedent he made clear during his confirmation hearing.

And Gorsuch agreed with another one of the court’s decisions to allow religious organizations access to government money — except for a single footnote written by Chief Justice John Roberts, which restricted the case to just playgrounds. Alongside Thomas again, Gorsuch wrote in his concurrence that denying funds solely because an institution is religious would constitute discrimination “anywhere else” too. Under Gorsuch’s reasoning, the decision could also apply to school vouchers, as many school-choice advocates hoped.

A confident rookie

Joining Thomas and Justice Samuel Alito, Gorsuch also would have allowed all of Trump’s travel ban to take effect immediately.

“He seems to be going out of his way to communicate that he’s going to be a very, very conservative justice,” Chemerinsky said. “I do think it is unusual for a justice to be so clearly and outspokenly ideological from the first days on the Court.”

New justices often take their colleagues temperature before asking questions during oral arguments or making any big moves. But from day one, Gorsuch dove right in. Just thirteen minutes into hearing his first case, the former 10th Circuit justice lobbed a matter-of-fact question about applicability of the law at the lawyer arguing in front of him and his eight colleagues. And Gorsuch continued to dominate the oral arguments that day.

“He does not have a rookie’s fear of asserting his strong beliefs,” Winkler said.

Just this term, for example, Gorsuch wrote more separate opinions than Justice Elena Kagan, the last judge appointed to the bench, wrote in her first two years.