Hans A. von Spakovsky,
Relentless, harsh and wholly unmerited—such were the attacks against Judge Neil Gorsuch. Yet Senate Majority Leader Mitch McConnell (R-Ky.) held firm to his promise to hold a full-Senate vote on the judge’s nomination and today we have, once again, a full complement of justices on the U.S. Supreme Court.
Hopefully, Gorsuch’s confirmation means that the court once again has the crucial fifth vote needed to sustain the Constitution as written and to protect fundamental rights like religious freedom, free speech, and the right to bear arms.
Once he is sworn in, Justice Gorsuch will arrive at the Court just in time to hear the April 19 oral arguments in Trinity Lutheran Church v. Pauley. It is a case of stark, blatant religious discrimination by the government.
The state of Missouri provides grants to help nonprofit organizations resurface their playgrounds with rubber from recycled tires. The goal is to provide safer play areas for kids. But Missouri denied a grant to the licensed preschool and daycare center at Trinity Lutheran solely because it is a church. Missouri said the grant would violate separation of church and state. In reality, it violated prior Supreme Court precedent.
Given the hostility to religious freedom expressed in prior decisions like Burwell v. Hobby Lobby (2014) (the contraceptive mandate case) and Town of Greece v. Galloway (2014) (the town council opening prayer case) by the four liberal justices on the Court, Gorsuch is needed in the Trinity Lutheran case to prevent an injustice from occurring. Excluding churches from an otherwise neutral and secular government aid program clearly violates the First Amendment.
Gorsuch may also make a difference in the Court’s decisions about which of the pending petitions it will accept for appeal. Each term, the Court accepts only a little over 70 of the roughly 7,000 petitions it receives. It will be helpful, therefore, to have another justice who understands the importance of constitutional issues and will vote to accept the most important cases for review.
Among the petitions currently pending is Masterpiece Cakeshop v. Colorado Civil Rights Commission, an important case about an individual’s right to not be forced by the government to act in violation of his or her religious beliefs.
Another petition is Husted v. A. Philip Randolph Institute. In this case, the Sixth Circuit Court of Appeals issued an erroneous decision, misinterpreting federal law to prevent the state of Ohio from cleaning up its voter registration list. This is an especially important case for improving election integrity—and one which Justice Gorsuch may be inclined to take up.
Another petition that could help assure election integrity is North Carolina v. North Carolina NAACP. Here, a three-judge panel of the Fourth Circuit Court of Appeals erroneously threw out North Carolina’s voter ID law as well as numerous other election reforms.
Justice Gorsuch may also make a difference on petitions to come—such as the emergency appeals of the numerous injunctions issued against President Donald Trump’s executive order temporarily suspending travel from terrorist safe-havens.
As five dissenting judges from the Ninth Circuit pointed out, those decisions confound Supreme Court precedent and the constitutional and federal statutory provisions that authorize the president’s actions.
Neil Gorsuch should be the fifth vote needed to quash this judicial activism that interferes with the president’s authority as commander-in-chief to protect the nation.
In recent years, Justice Antonin Scalia provided the crucial fifth vote in numerous critical decisions. We’re talking about decisions that uphold the Second Amendment [e.g., McDonald v. Chicago (2010) and District of Columbia v. Heller (2008)] and First Amendment rights of political speech, [e.g., Citizens United v. Federal Election Commission (2010) and McCutcheon v. FEC (2014)]. Without Justice Gorsuch there to hold the constitutional line, those decisions could be jeopardized in future decisions.
To anyone who watched Justice Gorsuch answer a long string of questions at his lengthy confirmation hearing, it was obvious that he knows a lot more about constitutional law than any of the senators quizzing him.
He came; he saw; he conquered.
The result is a new Supreme Court justice who gives us every reason to believe he will uphold the Constitution, enforce the Bill of Rights, and rein in an administrative state that has expanded its power and reached far beyond its constitutional and legal authority.
Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and former Justice Department official. He is coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.