On Monday, Judge Neil Gorsuch was sworn in as an associate justice of the U.S. Supreme Court, succeeding Justice Antonin Scalia, who passed away in February 2016. Now that the court is once again at its full strength of nine justices, how will Gorsuch’s addition affect the Supreme Court, and especially nonprofits and nonprofit causes, in the short term?
Gorsuch was sworn in during the seventh month of the court’s typical nine-month annual session, which begins on the first Monday in October and runs through June. Most of the court’s work has already been done by the eight veteran justices, including hearing oral arguments and assigning which justices will write the main opinion and dissent for the court. Gorsuch will not be called upon to participate or vote on cases already in process.
However, there’s plenty for him to do beginning on day one. National Law Journal discusses the typical acclimation for a new justice, from selecting clerks (he’ll likely begin by using a combination of his clerks from the Tenth Circuit Court of Appeals and a Supreme Court clerk or two), moving into office space (apparently it’s a mystery which office he’ll receive), and reacquainting himself with the confusing floor plan of the Supreme Court building (he was a clerk there in the 1990s). Court insiders expect that Gorsuch will ask questions during oral arguments, though probably less initially than most other justices. This wouldn’t be an issue if it weren’t for Clarence Thomas, who almost never asks questions from the bench and went a decade without speaking during oral arguments.
The Supreme Court routinely hears appeals cases involving executions and the death penalty. Arkansas has scheduled eight executions in the 11 days after Easter. In addition to one or more of those cases being subject to a last-minute appeal, the state’s “assembly line” process itself may face a challenge as a potential constitutional violation. Since the cases would be new to the Supreme Court, it would be expected that Gorsuch would participate in them. In addition, he would be expected to participate in any other execution appeals that may reach the Court.
Religious liberty, separation of church and state, and the resolution of potential conflicts between a state constitution and the U.S. Constitution are at issue in one key case to be heard in April. Trinity Lutheran Church v. Comer addresses whether a state’s constitution can prevent state funds from going to religious institutions without violating the U.S. Constitution’s guarantees of free exercise of religion and equal protection of the laws. In this case, the state makes funds available to nonprofit organizations for resurfacing of playgrounds. The church’s application for funds under the program was denied because it is a church. The church has sued, claiming the state’s action was unconstitutional. On the one hand, Gorsuch is a conservative justice and might be presumed to favor a religious freedom argument. On the other hand, as a conservative, Gorsuch may give more weight to a state’s political will as expressed in its constitution than would a more liberal justice presumably wedded to the U.S. Constitution’s supremacy clause.
Court appeals from President Trump’s second executive order affecting immigration from six Muslim majority countries as well as refugees from Syria should reach the Supreme Court quickly. There is the question of the limits of presidential authority (if any) to issue the executive order and, if there are limits, whether there are constitutional limits on the specific criteria used. A quick resolution is necessary both because potential immigrants are awaiting permission to enter the U.S. and because the temporary immigration ban is set to expire soon, potentially rendering all or parts of the cases moot. Cases have already been decided at the appellate level in the Fourth and Ninth Circuits. Some believe that the federal government has waited for Gorsuch to be sworn in before appealing those decisions to the Supreme Court.
It is not likely that the nine-member court will get the opportunity to rehear the case of United States v. Texas. Last June, a 4-4 tie let stand a lower court decision stopping the federal government from implementing the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA program. The DAPA program would have shielded as many as five million undocumented immigrants from deportation and allowed them to work and live in the United States legally. Given its rhetoric and actions on immigration and the legal status of immigrants, it’s unlikely that the Trump administration will ask the Supreme Court to rehear the case that was decided against the federal government during the Obama administration.
Mandatory payment of “agency fees” to unions by nonmembers, specifically fees for collective bargaining expenses, was at issue when the Court split 4-4 last year in Friedrichs v. California Teachers Association. The case was brought on behalf of a non-union teacher by the libertarian nonprofit Center for Individual Rights. The group’s president, Terence Pell, said at the time, “Either compulsory dues are an acceptable exception to the First Amendment or they are not. […] A full court needs to decide this question, and we expect this case will be reheard when a new justice is confirmed.” More than 20 states have laws similar to California, so unions across the country would be affected by any change resulting from a rehearing by a nine-member court, especially since Gorsuch would be presumed to be anti-union and opposed to compulsory fees paid by individuals to nongovernmental entities such as labor unions.
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Lee Epstein, a law professor and political scientist at Washington University in St. Louis, makes an important point about the rarity of split decisions at the U.S. Supreme Court.
On eight-person courts the justices reach far fewer 4-4 decisions than we would expect. They seem to work hard to minimize them because they’re so inefficient. They can hold over cases, cast strategic votes to avoid a decision down the road that may be even worse ideologically, write narrowly and dump cases on procedural grounds.
One thing to watch for in Gorsuch’s early days is how he approaches the issue of “Chevron deference,” which involved a 1984 decision involving the Natural Resources Defense Council. Simply put, Chevron set the legal test for determining how much deference a court should give to a government agency’s interpretation of a federal law. The Supreme Court’s decision involved a two-part test saying: 1) if the statute as Congress passed it is clear, that’s the end of the matter. Federal agencies must implement the clear intent of Congress. If the court determines statutory language is not clear, then 2) “the court does not simply impose its own construction on the statute…Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
Gorsuch is believed to be skeptical about Chevron deference. This is not necessarily surprising for a conservative justice who might be suspicious of non-legislative governmental action, but there’s a family twist. The Supreme Court’s Chevron decision upheld actions taken by the Environmental Protection Agency under Gorsuch’s mother, Anne M. Gorsuch Burford.
Campaign finance is one area where Gorsuch may be even more doctrinaire than Justice Scalia was. Scalia was generally opposed to campaign finance limitations but was sympathetic to donor disclosure requirements. There is a possibility that Gorsuch may side with Justice Clarence Thomas, who believes that mandatory disclosure of donor information is a violation of the First Amendment.
If cases involving Native American rights and sovereignty come before the Supreme Court, Gorsuch may be a new, sympathetic ear. The Native American Rights Fund analyzed Gorsuch’s record and said, “When compared to Justice Scalia’s Indian law record, the conclusion drawn is that Indian tribes will likely have a better chance on their cases with Gorsuch on the court.” NARF says that Gorsuch sided with tribal interests 57 percent of the time when he was a federal appeals court judge in Denver.
The timing of Gorsuch’s nomination and confirmation means that he’ll likely be busy from day one as a Supreme Court justice, whether working on death penalty execution appeals, the limits of executive power, or possibly rehearing one or more of the few cases that were tied during the past year. Each question form the bench and each decision he issues will be scrutinized to discover whether his supporters and opponents got what they hoped and feared in his jurisprudence.—Michael Wyland