At a press conference two weeks before his inauguration, Donald Trump reaffirmed one of his central campaign promises: appointing conservative justices to the United States Supreme Court. “It’s one of the reasons I got elected,” Trump said. “I think the people of this country did not want to see what was happening with the Supreme Court, so I think it was a very, very big decision as to why I was elected.”
Today, President Trump rewarded social conservatives and delivered on his campaign promise by nominating Neil Gorsuch, a circuit judge of the U.S. Court of Appeals for the Tenth Circuit, to the U.S. Supreme Court. By his record, social conservatives have much to applaud and gain at the prospect of Gorsuch taking a seat on our nation’s highest court.
Some Background on Neil Gorsuch
Who is Neil Gorsuch, and where does he stand on issues important to social conservatives?
Gorsuch, 49, was appointed to the Tenth Circuit in 2006 by President George W. Bush. His nomination generated little controversy, and he was confirmed with a voice vote by the U.S. Senate. A graduate of Columbia, Harvard Law, and Oxford universities, he is praised for his eloquent legal prose and intellectual gifts, and is heralded by conservatives for his textualist and orginalist interpretations of the Constitution. It is no surprise that his appointment fills the vacuum left by Justice Antonin Scalia’s death.
Gorsuch has garnered significant praise from Robert P. George, a professor at Princeton University and arguably the nation’s most influential social conservative intellectual. On Facebook, George issued the following praise for Gorsuch: “He would be a superb Supreme Court justice. He is intellectually extremely gifted and is deeply committed to the (actual) Constitution and the rule of law. He will not manufacture ‘rights’ or read things into the Constitution that aren’t there or read things out of the Constitution that are.” In social conservative circles, a Robert George endorsement is sufficient alone to merit support for Gorsuch.
A member of the Anglican communion (who would become the only Protestant on the Supreme Court), Gorsuch studied under eminent legal philosopher, natural lawyer, and ethicist John Finnis at Oxford. Anyone familiar with Finnis’ work will understand the resounding alignment his work has with social conservative pillars, particularly on issues of human dignity and sexual ethics.
In 2009, Gorsuch wrote a book titled “The Future of Assisted Suicide and Euthanasia” where he examined these issues’ ethics and legality. According to the book’s description, while upholding the principle of patient autonomy, Gorsuch builds a case against legalization based on moral and legal arguments. His main principle—and the thesis of the book—is that human life is intrinsically valuable and that intentional killing is always wrong. He maintains that refusing unwanted and life-sustaining medical treatment is morally acceptable, but that intentional efforts to accelerate death are immoral.
Considering that euthanasia and physician-assisted suicide are gaining traction legally and electorally, it would be a great relief to have a legal expert on the Supreme Court who stands with human dignity.
Gorsuch has not ruled on a case specifically dealing with Roe v. Wade. However, he sided with religious employers who claimed a religious liberty infringement under the Affordable Care Act (Obamacare). In Hobby Lobby v. Sebelius, the Tenth Circuit ordered the federal government to stop enforcing the mandate against Hobby Lobby. In his concurrence, Gorsuch noted that the contraception mandate substantially burdened the company’s religious exercise. The Supreme Court later upheld the Tenth Circuit’s decision.
Further, Gorsuch dissented in the Tenth Circuit’s granting of an injunction in Planned Parenthood v. Herbert (2016). This case involved undercover videos released by the Center for Medical Progress showing Planned Parenthood affiliates engaged in horrific acts of harvesting baby body parts.
In response to these tapes, pro-life Utah Gov. Gary Herbert directed state agencies to “cease acting as an intermediary for pass-through federal funds to Planned Parenthood’s Utah affiliate.” After a district court denied Planned Parenthood’s request for a preliminary injunction against the governor, a divided Tenth Circuit ruled that the abortion provider was entitled to a preliminary injunction. While not ruling on the constitutionality of abortion, Gorsuch’s dissent in the case is notable.
In addition to his defense of Hobby Lobby’s religious liberty claim, Gorsuch wrote the majority opinion in a little-known but significant religious liberty case. In Yellowbear v. Lampert (2014), Gorsuch sided with the plaintiff, Andrew Yellowbear, a prisoner of Native American descent who sued the Wyoming Department of Corrections for preventing him access to a sweat lodge, which he argued was part of his faith. Gorsuch ruled that the Department of Correction violated Yellowbear’s religious rights.
In his ruling, Gorsuch noted that applicable law regarding sincerely held religious belief protects considerably more than the right to hold a religious belief in private. Rather, the law protects religious exercise. He explained, “Even if others of the same faith may consider the exercise at issue unnecessary or less valuable than the claimant, even if some may find it illogical, that doesn’t take it outside the law’s protection. Instead, RLUIPA protects any exercise of a sincerely held religious belief. When a sincere religious claimant draws a line ruling in or out a particular religious exercise, it is not for us to say that the line he drew was an unreasonable one.”
He also cited the Religious Freedom Restoration Act (1993) in his opinion, noting that it “passed nearly unanimously” and that “RFRA was (and remains) something of a ‘super-statute.’”
Against Activist Judges
In an essay at National Review Online in 2005, Gorsuch excoriated progressives for their reliance upon courts to implement their policy goals:
This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose. In constitutional litigation, too, experiments and pilot programs–real-world laboratories in which ideas can be assessed on the results they produce–are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.
To that, every social conservative ought to say, “Amen!” Almost foreshadowing the activist ruling of Obergefell v. Hodges, Gorsuch’s predictive powers were prescient.
Neil Gorsuch has excellent social conservative bona fides. Let’s hope that Democratic obstructionists bent on rejecting everything under the umbrella of Trump come to their senses and recognize his legal brilliance.