February 1, 2017
We are less than two weeks into the Trump administration, and the country is already on the verge of chaos. Due to President Trump’s frequent (and likely unconstitutional) executive orders that in particular target immigrants and people of color, protests are breaking out daily at airports, in the city streets, and even in front of the homes of Democratic leaders who aren’t being forceful enough in standing up to the new regime.
Now the new president has followed through on his campaign promise to only appoint judges who oppose abortion, nominating Colorado appeals court judge Neil Gorsuch to the Supreme Court. Gorsuch is being praised by the anti-abortion movement as the perfect choice to champion their goals of overturning Roe v. Wade and dramatically increasing the types of religious protections that allowed them to undermine the birth-control mandate in Burwell v. Hobby Lobby. That’s probably true, but in the process he may very well move the court to the left and protect reproductive-health access in the process.
According to most legal analysts, the 49-year-old nominee may not have an extensive record when it comes to abortion rights, but he’s likely to pick up the torch left by ultra-conservative Justice Antonin Scalia, whose seat he would be filling. “Neil Gorsuch has all the makings of an extreme anti-abortion justice,” David Cohen, Drexel University law professor and Abortion Care Network board member, told The Guardian. “He is devoted to originalism, has decried using the courts for social change, and has protected the rights of religious Christians to impose their views on everyone else,” said Cohen. “Whether he will vote to overturn Roe v. Wade is unknown, but the signs don’t point in the right direction.”
And those “signs” are quite evident. According to Americans United for Life (AUL), Gorsuch is a staunch opponent of euthanasia out of a belief in “life’s innate worth”—a signal that he embraces the “conception to natural death” ethos of the traditional pro-life movement. “In his book The Future of Assisted Suicide and Euthanasia, Gorsuch eloquently argues that it ‘is incompatible with the promise of equal justice under law that any of us should feel at liberty to sit in judgement to decide who is and who is not entitled to the benefits of’ being treated as ‘fully human,’ and that ‘human life qualifies as a basic good [and] it follows that we can and should refrain from actions intended to do it harm. Such actions, after all, by their very definition evince a denial of life’s innate worth,’” said AUL acting president Clarke Forsythe in an email statement regarding Gorsuch’s nomination.
Gorsuch also stood in favor of religious plaintiffs in both the Hobby Lobby and Little Sisters of the Poor lawsuits against the Obama administration, ruling that it was a violation of those organizations’ religious liberty to be required to offer contraception in their insurance plans, or even simply sign a form that would allow the administration to facilitate offering it to their insurees directly. “All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others,” Gorsuch wrote. “For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability."
In short, Gorsuch may not be as loud and combative as Scalia was on the bench, but when it comes to policies—especially around abortion and birth-control access—he’s likely to fill the ex-Justice’s shoes precisely.
That’s the bad news. But maybe, just maybe, there is good news as well.
Conservative activists claim that there is no good reason to oppose Gorsuch—or really any SCOTUS nominee—because the addition of a new justice wouldn’t change the balance of power, but rather replicate the makeup of the court before the death of Scalia. Of course, that may be overly simplistic. As legal analyst Jessica Mason Pieklo suggests at Rewire, it’s very likely that Gorsuch is actually more conservative than Scalia, an idea that should put anyone who values civil rights and the ability to live freely without religious intrusion on alert.
However, defying all logic, having another hardline social conservative on the bench may actually serve to move the court over to the left, instead. Prior to Scalia’s death, Justice Anthony Kennedy has served as the court’s consistent middle—the swing vote each side sought to woo when it came to creating a majority. Appointed by Republican president Ronald Reagan, Kennedy—a devout Catholic—has often been seen more as an ally of conservatives during the previous few terms, especially on reproductive rights.
Yet this summer, in a 5 to 3 decision, Kennedy sided with the liberal wing on the biggest abortion access case to hit the court in decades: Whole Women’s Health v. Hellerstedt. The man who helped craft the notion of “undue burden” on the right to access an abortion stood with others to declare that closing clinics with medically unnecessary restrictions on doctors and buildings did not make abortion safer for patients, only less available.
Anti-abortion activists have spent the last decade crafting legislation that they hoped would specifically appeal to Kennedy—a 20-week abortion ban based on the medically unsupported claim that a fetus can feel pain at that point, for example, or the new ban on D&E abortions, which would make it nearly impossible to get a termination after the first trimester. Considering prior to WWH v. Hellerstedt, Kennedy never met an abortion restriction he didn’t rule in favor of, the gambit was a smart one. Those bills hadn’t made it to the Supreme Court yet, but abortion opponents knew it was just a matter of time.
Adding Gorsuch to the bench may leave the Supreme Court ideologically similar in make up to SCOTUS circa 2015, but the judicial branch is alone in that regard. Instead, the court is in effect the last stand for any form of moderation in the face of a far right White House, House, Senate, and even most state legislatures. As such, Kennedy will no longer be the swing vote just in the Supreme Court, he might very well be the only person that can stop a full-out social conservative hijacking of the entire nation.
Call me an optimist, but when faced with the knowledge that he may be the only one who can keep intact Constitutional rights such as abortion, marriage equality, voting access, and other civil-rights issues that are being dismantled under the grounds of “religious liberty” by a movement hell-bent on keeping the power they have so recently gained, I believe Kennedy will stand with the court liberals. That is a stand I don’t think he would have been as likely to make had Hillary Clinton won the White House and a more progressive appointee was joining the bench.
When Judge Neil Gorsuch is confirmed—and there is absolutely no doubt that he will not be confirmed at some point—he will be joining the Supreme Court with Anthony Kennedy, a man for whom he clerked earlier in his career. Funny how in the end, it may be Gorsuch who has the most impact on Kennedy, and not the other way around.