On Tuesday, President Donald Trump said he would name his nominee to fill Antonin Scalia’s vacancy in the near future. At the top of Trump’s list is Neil Gorsuch, who serves on the federal appeals court in Denver.
If nominated—and approved—Judge Gorsuch would be the youngest justice serving on the Supreme Court. His seat on the bench would come at a polarizing time for the country, and could potentially shift the tide on certain contentious pieces of legislation.
Gorsuch is known for ruling in favor of religious liberty, especially when it comes to the Affordable Care Act’s mandate that companies must provide birth control to employees.
He’s served as a clerk for two Supreme Court justices—Justice Anthony Kennedy and Justice Byron White—and was appointed to his current position by President George W. Bush in 2006. Gorsuch is known to be an aggressive questioner, much like Antonin Scalia. Ideologically, he’s an originalist, which means he interprets the words of the founding fathers strictly as they appear in the Constitution.
Alan Chen, a professor at University of Denver’s Sturm College of Law, noted that there is a significant difference between Gorsuch and Scalia when it comes to administrative law. This is the type of law that governs federal agencies such as the U.S. Department of Agriculture, the Environmental Protection Agency, and the Department of Justice. The two men differ with regard to a longstanding doctrine called “Chevron Deference,” which states that federal courts should defer to the federal agency’s interpretation of the laws that assign them power. The thought behind this is that the federal agencies are experts in their respective fields, so the courts aren’t exactly in the best position to challenge them.
“Judge Gorsuch has been openly critical of the level of deference that’s given to federal agencies,” Chen says. “This might speak to his views about federal power, which are obviously going to be of considerable importance over the next four years.”
Gorsuch’s anti-Chevron view is based on the belief that the executive branch is departing from what Congress wanted.
Case Name: Roe v. Wade
Status: SCOTUS ruled in 1973 that a woman’s right to an abortion is protected under the Fourteenth Amendment
Since President Trump won the election, women’s issues seem particularly vulnerable. But it’s unlikely that Roe v. Wade will change course by replacing Scalia’s seat alone.
“This is the replacement for Justice Scalia, who was openly hostile to Roe v. Wade,” says Chen. “So even if a nominee is appointed with similar views, it doesn’t change the number of votes to hold Roe v. Wade right now.”
There’s also another factor, Chen says: stare decisis. This is the idea that court rulings should be in line with previous decisions, and when a ruling has been the precedent for at least a generation—as Roe v. Wade has been—it’s usually safe to say it will remain intact. Still, the Senate Judiciary Committee would be wise to press Gorsuch on when he thinks it is appropriate to overturn a court’s ruling.
Case Name: Gloucester County School Board v. G.G.
Status: Unscheduled, should be decided in 2017
This court case deals with whether or not individuals can use the bathroom of the gender with which they identify. Because originalists believe the Supreme Court should not recognize rights that are not expressly written in the Constitution, we expect Gorsuch not to rule in favor of the transgendered teen. As an interesting contrast to that perch, this lawsuit invokes Title IX of the 14th Amendment, which prohibits sex discrimination by schools.
Critics of the originalist perspective often point to the many issues the founders could not have imagined, such as free speech in the age of the internet, civil rights for the transgender community, or a possible ban on assault weapons, to name a few, as evidence of the philosophy’s flaws.
We’re hardly a week into Trump’s presidency, and he’s already issued several executive orders on a wide range of issues. But executive orders are nothing new; in fact they are quite normal. His orders, while controversial, are perfectly legal. Executive orders have been used in the past by nearly every single president. Fun fact: William Henry Harrison is the only president never to use an executive order. Not-so-fun-fact: Harrison was only president for 31 days because he died of pneumonia, supposedly.
Whereas federal agencies, such as the FBI, have long been subject to power restraints, Chen says it is rare to have a Supreme Court Justice try and rein in the power of the president when it comes to executive orders.