It has now been more than a year since United States Supreme Court Justice Antoni Scalia was found dead while enjoying a hunting retreat in Texas and the Supreme Court has functioned with eight Justices instead of its normal nine.
Scalia was widely regarded as one of the most influential voices of conservative jurisprudence. He advocated an “originalist” interpretation of the Constitution that interpreted the meaning of Constitutional passages based upon the intent of the drafters at the time it was written. More liberal Justices of the Court, such as Stephen Breyer, hold that the Constitution is a living document and that words can change their meaning over time.
Scalia was also admired for his writing, which often included fiery prose and contrarian thinking. Among the decisions in which Scalia was influential was the 2000 decision that effectively ended the Presidential race and handed victory to then-Texas Governor George W. Bush as well as decisions that expanded protections under the Second Amendment for firearms purchases and possession.
President Obama had nominated Merrick Garland to fill Scalia’s seat, but with Democrats not having the requisite number of votes to force a nomination vote, Garland was frozen out of the process by Senate Republicans. President Trump’s choice to fill the seat, Neil Gorsuch, is in the midst of his confirmation process and it seems all but certain that he will be confirmed.
But, how would Justice Gorsuch’s views compare to those of Justice Scalia? For the most part, there appears to be little difference.
Gorsuch, like Scalia, received his law degree from Harvard and serves on a Federal Appellate Court. Some views, such as Gorsuch’s position on abortion, should surprise no one as it seems almost impossible for a Republican President to nominate a pro-choice Justice in the current political environment. It should be noted, though, that Gorsuch has never actually ruled on a case involving abortion.
Justice Gorsuch, however, has expanded on certain legal issues that give a window to his thought process. For example, he authored a book on euthanasia that criticized the legality of the practice as an affront to the inherent value of human life. Decisions on religious freedom also echo Scalia, such as his vote to rule unconstitutional the Affordable Care Act mandate requiring private businesses to offer birth control in the coverage they provide employees as well as arguing that public entities should be allowed to display religiously significant items, such as the Ten Commandments, without offending the Establishment Clause of the Constitution.
Gorsuch’s views on more mundane legal topics also rest within the Conservative mainstream. One such position involves the Commerce Clause to the Constitution. For a significant period of time, the Commerce Clause – which gives the Federal Government the right to regulate interstate commerce – was interpreted to give broad powers to the Federal Government to regulate matters only indirectly related to interstate commerce. Conservatives have argued that that interpretation is far too broad and not within the original meaning of the text. A parallel issue – often known as the dormant commerce clause – has prevented state and local governments from interfering in matters only indirectly relevant to interstate commerce and Gorsuch has argued for a scaling back of that interpretation as well. When Justice Roberts cast the key vote in affirming the constitutionality of the individual mandate of the Affordable Care Act, he went to great lengths to not do so on the basis of the commerce clause but on the taxing and spending authority of Congress.
Another issue the conservative jurisprudence has brought to the limelight is the amount of deference shown to administrative agencies. Administrative agencies, such as the Securities and Exchange Commission, the Federal Trade Commission, or the National Labor Relations Board, are agencies created when Congress delegates a specific part of its law-making body to agencies that have been given broad deference by courts. Gorsuch, like Scalia, would likely vote to place greater limitations on the powers of these agencies.
In his remarks to the Senate Judicary Comittee today, Gorsuch sought to downplay the importance of politics and reaffirmed his impartiality and independence from elected politicians, including those with the power to nominate and confirm him to the Court. Democrat members of the committee took the opportunity to criticize the current Court and the lack of a hearing for Merrick Garland in the final year of Obama’s Presidency, but stopped short of directly criticizing the nominee.