Why Justice Neil Gorsuch Could Be A Nightmare For Progressives
On Monday, the Supreme Court decided that it would allow for parts of President Donald Trump's travel ban to go into effect, at least until it can review the case in October. However, three justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch— reportedly wrote that they would've supported the entirety of the executive order. Though it's likely to affirm Trump's faith in his nominee, Justice Gorsuch's right-leaning stance will also devastate progressives.
The executive order — which sought to suspend visitors from Iran, Libya, Somalia, Sudan, Syria, and Yemen — has been criticized by many progressives as Islamophobic and discriminatory. However, Thomas' dissent (joined by both Gorsuch and Alito), lent support for the full ban on the grounds of "the Nation's security." The justices also implied that they haven't counted the order out yet, adding that they believed Trump's camp "made a strong showing that it is likely to succeed on the merits." Trump called SCOTUS' decision to hear the case a "clear victory" for his cause.
While there's still a few months before the court hears the case, Gorsuch's background (paired with this most recent move) is sure to keep progressives on edge about his influence on key cases and issues that hit the courts.
1. His Response To The Travel Ban
As mentioned above, joining in on Thomas' dissent indicates — if nothing else— that Gorsuch's instincts on the travel ban may not be as consistent as those in the lower courts. Clearly, he doesn't perceive the measure as being religiously discriminatory towards Muslims.
2. His Willingness To Let Conservative Employers Refuse Birth Control
Prior to his confirmation, Gorsuch's role in the Burwell v. Hobby Lobby Stores, Inc. case had many reproductive rights advocates nervous. From the U.S. Court of Appeals for the Tenth Circuit, Gorsuch's take was to favor employers' right to restrict the kind of health care their workers can access, arguing that it was in the service of religious freedom and "protecting unpopular religious beliefs."
As health care debates intensify around the country, having a judge with a noted lack of investment in affordable birth control on the bench certainly won't soothe those concerns.
3. The Possibility He Views A Fetus As A "Person"
While Gorsuch's record doesn't explicitly feature a whole lot related to abortion, rulings-wise, what is known heavily implies that he's no friend to pro-choice advocates.
First of all, he's ruled in favor of defunding Planned Parenthood, supporting Utah's 2016 decision (which was later overturned) to pull $275,000 in grants from the family planning organization following the debunked series of videos from anti-choice activists that claimed it was illegally selling fetal tissue.
Also, in his writing on the issue of assisted suicide, he wrote that "no constitutional basis exists for preferring the mother's liberty interests over the child's life."
4. His Defense Of The Use Of Torture
While working for the Justice Department in the early 2000s, Gorsuch notably argued that "enhanced interrogation" tactics (aka, torture!) works and defended those tactics, amping up surveillance programs under the Bush administration.
Though Gorsuch later said that taking part in this case was just a part of his job as a lawyer, critics remained skeptical of the moral implications and his ability to stand up to executive power under pressure.
5. His Chilly Record On LGBT Rights
LGBT advocates have warned about Gorsuch since he was first nominated, citing cases where he ruled against a transgender prison inmate's right to access hormone treatments and joined in on an opinion defending an employer who denied his employee (a trans woman) access to the women's restroom.
Additionally, his recent dissent earlier this week in the case of Pavan v. Smith — arguing against allowing same-sex parents to list a non-biological parent on the birth certificates — certainly won't win much support among LGBT folk and their allies.
6. His Lack Of Concern About The Emoluments Clause
There's been growing interest in how President Trump's family business endeavors mesh with the emoluments clause — the constitutional clause that prohibits government officials from accepting anything of value from a foreign government without congressional approval.
For Gorsuch, the early rumblings over emoluments weren't that much of an issue, as indicated by the way he dismissed questions about it and said that the clause "has sat in a rather dusty corner for a long time."
As Americans await more from the SCOTUS — and get a better reading on Gorsuch's sensibilities on the bench — when they resume in October, progressives should probably stay on their toes.