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Sunday, July 02, 2017

Justice Gorsuch Delivers - The New York Times







"Mitch McConnell, the Senate majority leader, has had a rough couple of weeks. Yet, however many setbacks he might suffer over health care reform or other parts of the Republican agenda, he knows he has already won the biggest fight of all: the theft of a Supreme Court seat from President Obama, the installation of Justice Neil Gorsuch and the preservation of the court’s conservative majority for years to come.



“One of my proudest moments was when I looked at Barack Obama in the eye and I said, ‘Mr. President, you will not fill this Supreme Court vacancy,’ ” Mr. McConnell told a political gathering in Kentucky last summer.



With this audacious pledge — made only hours after news of Justice Antonin Scalia’s death on Feb. 13, 2016, reached the public — Mr. McConnell demolished longstanding Senate tradition and denied a vote to one of the most well-qualified nominees ever: Merrick Garland, the veteran federal appellate judge Mr. Obama had chosen to replace Justice Scalia.



As the court’s term ended last week in a flurry of high-profile opinions and orders, it was clear that Mr. McConnell’s gambit had paid off in the extreme. It’s risky to read too much into a justice’s early opinions, but Justice Gorsuch, who was confirmed less than three months ago, has already staked his claim as one of the most conservative members of the court.



Chief Justice John Roberts Jr., a staunch conservative in his own right, often seeks out points of compromise among the justices. On June 26, the court’s last opinion day, Justice Gorsuch appeared to be having none of it.



Consider his separate opinion in Trinity Lutheran Church v. Comer, which held that states must sometimes provide aid to religious groups even when their state constitutions bar it. The case, which involved state funds to make playgrounds safer, has implications for government aid to religious institutions in many other cases, notably school vouchers. That concerned some of the more liberal justices, but Chief Justice Roberts won them over, and put together a 7-to-2 majority, by writing that the ruling was limited to playgrounds. Justice Gorsuch rejected the chief’s effort to limit the decision even though he agreed with the outcome. He wanted much more: “The general principles here,” he wrote, “do not permit discrimination against religious exercise — whether on the playground or anywhere else.”



On the same day, Justice Gorsuch dissented or distinguished himself from the majority in cases involving the equal treatment of married same-sex couples, President Trump’s travel ban and rights under the Second Amendment. In each instance, he sided with Justice Clarence Thomas, who, at least until now, has been the court’s most conservative member.



The problem isn’t so much Justice Gorsuch’s judicial ideology, which is so far unsurprising. Presidents choose justices who they believe will rule in a way that aligns with their own views, and right-wing groups had long ago flagged Justice Gorsuch as a reliable conservative. He would surely have been a top choice of many Republican presidents. The problem is that he’s sitting in the seat that by rights should be occupied by Judge Garland. Had Mr. Garland been confirmed, the court would have had a majority of Democratic-appointed justices for the first time in almost half a century.



Instead, the court is back to a Republican-appointed majority, the consequences of which will only become more apparent next term, when the court is scheduled to hear high-profile cases involving partisan gerrymandering, Mr. Trump’s travel ban and religiously based challenges to anti-discrimination laws that protect same-sex couples.



The conservative majority will grow even stronger if more justices retire during Mr. Trump’s term, a very good possibility. At that point, the president and Senate Republicans — who destroyed the filibuster for Supreme Court nominees in order to confirm Justice Gorsuch — will be able to put anyone they like on the court.



Mr. McConnell’s decision that day in February 2016 represented either the height of courage or the depths of cynicism — or perhaps both. Either way, it set in motion a chain of events that, while seemingly implausible only weeks earlier, changed history. Mr. Trump will be out of power by 2025 at the latest. But thanks to Mr. McConnell, Justice Gorsuch, and whoever else might join him in the next couple of years, will entrench a solid conservative majority on the court for far longer."



Justice Gorsuch Delivers - The New York Times

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