President Donald Trump’s choice for the Supreme Court, Neil Gorsuch, if confirmed could make his presence felt on the Court on a series of hot-button issues, including transgender rights, voter ID laws and gun control.
Gorsuch could also find himself in the awkward position of having rule on controversial actions taken by the same man who introduced him to the nation Tuesday night. Trump’s executive order limiting travel by citizens of seven Muslim-majority countries has already touched off a wave of litigation that is destined to eventually make its way to the Supreme Court.
But for the moment, the Court is unlikely to take up many controversial cases. After operating shorthanded for nearly a year since the unexpected death of Justice Antonin Scalia, the justices seem to be avoiding polarizing issues and holding back on granting certiorari, declining to review certain disputes brought from lower courts.
“It’s no secret the court has cut back on cert grants, especially in controversial cases and ones likely to split, 4-4,” said Carl Tobias, a law professor at the University of Richmond.
It seems doubtful Gorsuch will make it onto the court before arguments for this term wrap up in early April. But he could catch a rebound effect, as the justices begin to wade into issues in the next session that they’ve snubbed over the past year.
Here are some current areas of intense legal dispute where Gorsuch could weigh in if he becomes the next Supreme Court justice:
Gay rights and religious freedom
Gorsuch’s arrival won’t have any impact on the court’s stance towards gay marriage, since Scalia was in the minority on that ruling. However, the growing acceptance of gay nuptials and the gay community more generally has fueled disputes over rights of religious believers to refuse to provide services to gay couples. In many states, such practices violate anti-discrimination laws, but bakers, florists and others have claimed these laws intrude on religious beliefs.
Gorsuch has signaled a robust view of religious freedom rights, primarily through Obamacare-related cases, and he could join with other conservatives to rule that individuals and businesses sometimes have the right to discriminate against gays for religious reasons
“Can religious conservatives get an exemption from generally applicable laws? That’s definitely going to come up as a big issue in future years,” said Adam Winkler, a UCLA law professor. He predicted Gorsuch will be a “strong voice for religious exemptions.”
Whether federal civil rights laws cover discrimination against transgender individuals is an issue currently before the court, but it’s possible that particular case goes away before Gorsuch makes it to the bench. In October, the justices agreed to hear a case involving a transgender boy’s right to use the boys’ bathroom at his Virginia public high school.
However, the case also involves the validity and significance of guidance the Obama administration’s Education Department issued urging such accommodations under federal law. If the Trump administration withdraws that guidance, the justices could punt the case.
Either way, though, the question of transgender rights at school and in the workplace under federal law is one the court seems certain to have to wrestle with in the next few years.
“Transgender rights is definitely going to come back up,” Winkler said. “That issue is not going to go away but I wouldn’t be surprised to see the justices kick the can down the road a bit.”
Trump’s terrorism-related immigration ban
Trump’s order last week limiting travel to the U.S. by nationals of seven majority-Muslim countries unleashed protests at U.S. airports and a still-growing flurry of legal challenges. How Gorsuch might rule on the legal questions posed by Trump’s move is a mystery. Conservative judges tend to be deferential to the executive branch on national security-related issues, but Gorsuch’s strong concerns about religious liberty might lead him to be skeptical about rules that are arguably designed to impact a particular religion.
“That kind of religious discrimination could well cause Gorsuch to take a second look,” Winkler said.
Perhaps the most certain result of putting Gorsuch on the court is an eventual setback for public employee unions. Such unions avoided a likely defeat after Scalia’s death last year when the court deadlocked, 4-4, in a case about fees for a large California teachers’ union. The result signaled that if Scalia had still been on the court, a union’s right to collect fees from employees who opt-out of the union would have been eliminated, dealing a potentially severe blow to the finances and political clout of the already-struggling labor movement.
Almost any Republican appointee would be expected to side with other GOP justices to rein in that practice. Assuming Trump can get some nominee seated, it seems to be just a matter of time before the court revisits the issue and brings down the hammer that the unions narrowly escaped last March.
Voter ID laws
States with Republican legislatures have passed a variety of measures in recent years allegedly aimed at preventing voter fraud, but which Democrats contend are thinly-veiled efforts to make it harder for minorities to vote. Trump has fueled the controversy since taking office with his unsubstantiated claim that 3 million to 5 million people voted illegally in last November’s presidential election–all of them voting for his Democratic opponent, Hillary Clinton.
Just last week, the Supreme Court declined to review a case about Texas’s 2014 voter ID law. Last July, a federal appeals court splintered over the measure,but a majority held that the measure had a discriminatory effect that violated the Voting Rights Act.
When the justices turned the case down, Chief Justice John Roberts issued a somewhat unusual statement that almost invited state officials to bring the case back to the high court after another round of litigation in the lower courts is complete. “The issues will be better suited for certiorari review at that time,” Roberts wrote.
The one view that made Gorsuch such a star with legal conservatives is his view that judges should do more to check the power of the modern regulatory state. That was an uncontroversial position on the right during the eight years of the Obama administration.
What it means for the Trump administration is more complicated. As Trump’s team moves to roll back climate change regulations, water pollution controls, pay and overtime regulations and similar measures put in place by Obama, the courts will be asked to rule on many of those moves.
Gorsuch’s rulings suggest he’s inclined to take a rigorous look at agencies’ actions in those areas and to make an independent determination of what the law requires, rather than deferring to agencies’ expertise.
“Congress isn’t going to much of a job checking this president. Courts will do a better job of that because most judges take their jobs seriously,” Winkler said. “Things like ‘alternative facts’ don’t fly in a court of law. Conservative judges might not be that thrilled to help Donald Trump in his most extreme efforts.”