With the ascension of Circuit Court of Appeals Judge Neil Gorsuch to the U.S. Supreme Court, conservatives can breathe a sigh of relief that not only is the nation’s top judicial chamber headed back toward having a conservative majority, but Gorsuch could prove the equal or better of deceased Justice Antonin Scalia, who passed away last year.
Caroline Fredrickson, the president of the American Constitution Society for Law and Policy, a left-leaning legal advocacy organization, says, “I think it’s interesting [Gorsuch is] cast as either a follower of Scalia or a more temperate version of Scalia. But in fact, it seems that he may be quite to the right of Scalia in certain areas.”
Like Scalia, Gorsuch had previously ruled in favor of Hobby Lobby stores in a widely watched case that dealt with business owners’ rights to religious freedoms. Gorsuch’s Circuit Court ruled that Obamacare could not compel companies to provide insurance coverage for contraception if it went against religious beliefs. The Supreme Court confirmed that opinion in 2014.
Gorsuch is expected to continue to fight for religious freedoms, especially in cases dealing with protections for LGBTQ Americans. “I can see efforts to make it easier for people to opt out of providing services,” continued Fredrickson, clearly siding with progressives.
“I can see letting the florist, the caterer, the dress maker have no requirement to provide gays and lesbians with any services… There are a lot of different ways, even if a right is not taken away in name, it’s gone because it’s impossible to exercise.”
Although many liberals agree with Fredrickson’s opinion, Gorsuch has yet to actually rule in an LGBTQ case. Carrie Severino, the chief counsel for Judicial Crisis Network, a conservative advocacy group that pushed hard for Gorsuch’s confirmation, stated that Gorsuch’s record is one of following the law, and not considering politics.
But there’s already one legal area where Gorsuch is considered more conservative than Scalia, and it’s known as the Chevron deference. In 1984, a landmark Supreme Court decision ruled in favor of oil company Chevron over the environmental group the Natural Resources Defense Council (NRDC), which had argued that a new Environmental Protection Agency (EPA) regulation was unfair and favored the large oil company.
Ironically, at the time, the EPA was headed by Judge Gorsuch’s mother, Anne Gorsuch, who led numerous deregulation efforts at the agency under President Ronald Reagan.
The case basically states that courts should defer to government agencies’ interpretations of laws unless they’re unreasonable. The Court’s opinion established this precedent to the degree that even lower courts and followers of the law refer to the principle as the Chevron deference. Justice Scalia was a believer in this principle to a limited extent, and he, too, upheld the Chevron deference several times.
But in an opinion issued last year, Gorsuch said that the Chevron deference ought to be reconsidered. “If this goliath of modern administrative law were to fall? Surely Congress could and would continue to pass statutes for executive agencies to enforce,” Gorsuch wrote.
“And just as surely, agencies could and would continue to offer guidance on how they intend to enforce these statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is.”
Essentially, Gorsuch believes the Chevron deference is an attempt to circumvent the Constitution and would rather not leave it up to agencies (whose heads change as often as presidential administrations) to have powers to interpret the law; this would be done by the courts instead.
Liberal groups fear this could put numerous Obama-era health protections at risk, some of which are already facing challenges in District Courts.
“[Gorsuch] will, unlike Scalia, restrict the ability of agencies to protect our health and safety… and second-guess agency experts,” opined Nan Aron, the president of the Alliance for Justice, a liberal judicial advocacy group. “His decisions favor corporations and special interests at the expense of consumers and workers, and we believe he’ll continue this trend on the Supreme Court.”
But the director of the Heritage Foundation’s Center for Legal and Judicial Studies, John Malcolm, says this interpretation is subjective. “[Gorsuch’s] approach of less deference to agencies would apply during a Democratic administration and Republican administration [alike],” Malcolm said.
“It’s not based on whether he likes the executive branch rulings or not.” Malcolm argues that Gorsuch’s dissent is an argument for separation of powers, saying that it’s the court’s job to give interpretations of laws. “Gorsuch would show no more deference to Trump administration agencies than he would Obama administration agencies,” claims Malcolm.
In addition, as a Supreme Court Justice, Gorsuch would be in a position to potentially invalidate the Chevron deference, setting a precedent and shifting the court to the right of where it currently stands.
Other legal experts said that it’s impossible to say how Gorsuch will rule in such cases. “You can’t really know, even if you read all his circuit opinions, how it will work out once he’s on the court,” insisted Carl Tobias, a law school professor at the University of Richmond.
Tobias says that the kinds of cases heard by Gorsuch’s 10th Circuit Court differ from those heard in the Supreme Court; the latter typically addresses broader Constitutional questions versus narrower case-specific points. “I think that to some extent, justices change when they’re on the [Supreme] Court for good or bad, and it just depends on the issue,” said Tobias.
Tobias notes that Gorsuch is just 49, and will likely serve for decades on the Court. “If he turns out to be conservative, it solidifies the conservative bloc in a way that wouldn’t have happened if you had someone older.”
As far as environmental regulations, the Court has already begun swinging in the direction of not citing the Chevron deference in its decisions. Agencies such as the EPA have begun to rely more on existing judicial statutory interpretation than counting on the Chevron deference when trying to defend regulations in lawsuits.
Congress also has made noises about wanting to put an end to the Chevron deference, perhaps because of the number of liberal heads of government departments under former President Obama and because many agency regulations were established decades ago under Democratic administrations and have not been able to be successfully rolled back since then. For Republicans in Congress, Justice Gorsuch may be able to assist with these efforts.
