On April 7, 2017, the Senate confirmed Judge Neil M. Gorsuch of the 10th U.S. Circuit Court of Appeals as the 101st associate justice of the United States Supreme Court, replacing the late conservative Justice Antonin Scalia. The confirmation was based on a party-line vote of 54-45, and only three Democrats voted with the majority.
This vote was significant for several reasons, both procedural and substantive. The vote set a precedent that will have an impact on the way Supreme Court justices are confirmed for the foreseeable future. It may also have implications regarding issues of interest to the higher education and diverse communities.
[Above; Judge Neil M. Gorsuch and his wife, Louise Gorsuch, stand by as President Donald Trump announces Gorsuch as his nominee to the U.S. Supreme Court in the East Room of the White House on January 31, 2017. (official White House photo by Shealah Craighead)]
Gorsuch was selected from a list of 21 jurists that President Donald Trump assembled as a testament to his conservative and judicial bona fides. A former law clerk of Justice Anthony Kennedy, the 49-year-old Gorsuch will theoretically sit on the court for many years. A native of Colorado, he earned his bachelor’s degree from Columbia University, a JD from Harvard Law School, and a doctorate in philosophy from Oxford University. After working as an associate and partner for the law firm of Kellogg, Huber, Hansen, Todd, Evans, & Figel, Gorsuch served as principal deputy to the associate attorney general and acting associate attorney general in the U.S. Department of Justice from 2005 to 2006. Thereafter, he was nominated by President George W. Bush and became a judge on the 10th U.S. Circuit Court of Appeals.
Gorsuch was confirmed to the Supreme Court after a year of controversy. When Justice Scalia passed away in February 2016, President Barack Obama nominated Judge Merrick Garland of the Court of Appeals for the D.C. Circuit. This nomination was ill-fated, however, as Senate leadership refused to grant Garland a hearing, arguing that the next president should fill the vacancy because it came in the middle of a presidential election season and so late in Obama’s final term.
In addition to their decision not to act upon the former president’s nomination, Senate leadership decided to exercise the “nuclear option” — a procedure in which the Senate can override a rule or precedent by a simple majority of 51 votes — when they failed to obtain the necessary 60 votes to overcome a filibuster on Gorsuch’s confirmation. Confirmed by a simple majority, Gorsuch was sworn in as an associate justice of the Supreme Court in April, filling a vacancy that had left the court with only eight votes for nearly a year.
So what are the implications of the confirmation of this ninth justice? Civil rights organizations were virtually unanimous in their condemnation of Gorsuch as a candidate to the Supreme Court. Additionally, the American Association for Access, Equity, and Diversity (AAAED) released a statement, saying, “In AAAED’s view, Judge Gorsuch’s record demonstrates that he leans heavily in favor of employers, for example, and tends to be dismissive of ‘discrete and insular minorities’ who present discrimination claims in the courtroom, and who are most in need of the court’s protection to secure core constitutional rights.”
In the case of Hobby Lobby Stores, Inc. v. Sebelius, Gorsuch joined the full court in ruling that Hobby Lobby, a closely held, for-profit secular corporation, did not have to comply with provisions of the 2010 Patient Protection and Affordable Care Act that require employers to provide contraceptive services to employees. Citing the Religious Freedom Restoration Act of 1993, he ruled in favor of Hobby Lobby on the grounds that the provision violated the company’s sincerely held religious beliefs. Moreover, Gorsuch indicated that both the corporation and its individual owners could challenge the mandate to provide contraceptive services.
In interpreting the Individuals with Disabilities Education Act, Gorsuch dismissed the cases of children seeking protections under the law, ruling that students with disabilities, such as autism, are entitled only to a bare minimum education. However, the Supreme Court unanimously reversed the 10th Circuit’s ruling in Endrew F. v. Douglas County School District, finding that Gorsuch’s standard was exceedingly low and “would barely provide an education at all to children with disabilities,” according to Chief Justice John Roberts.
Other cases suggest that Gorsuch’s record is more mixed and that, in some cases, he ruled in favor of the victims. For example, in a 2007 Title IX case, he reportedly voted to restore an action brought by students alleging sexual assault. While the lower court ruled in favor of the university, Gorsuch’s panel overturned the decision, “blaming the assaults on poor campus supervision,” according to the Associated Press. The case was settled out of court, and the institution reportedly paid $2.85 million to the complainants.
As for women’s rights, the position taken by Gorsuch in Hobby Lobby portends a limited view of the rights of women regarding contraceptive coverage and possibly Roe v. Wade and abortion rights. The Hobby Lobby case forebodes a similar outcome for the LGBTQ community because of Gorsuch’s support for religious liberty as a defense to claims of discrimination. If sincerely held religious beliefs are used as a justification for discrimination, LGBTQ employees are at serious risk.
Advocates of equal opportunity laws, diversity, and affirmative action have reason to be concerned, too. In the National Review, Gorsuch took a very limited view of civil rights impact litigation — lawsuits that have the potential to cause significant societal change. He has also questioned the amount of deference courts should give to federal agencies’ interpretations of laws. Agencies such as the Equal Employment Opportunity Commission have historically issued guidance that courts often choose to follow, but Gorsuch may not be so inclined.
Moreover, it has been said that he will follow the Scalia school of judicial interpretation, and it is well known that Scalia had a dim view of affirmative action. Recently, groups representing Asian students have sued Harvard University and other elite institutions for discrimination, arguing that affirmative action was the cause. These and other cases may come before the Supreme Court in the coming years.
If Gorsuch’s record tells us anything, it’s that he leans heavily conservative and can be expected to align with this wing of the court. However, what will be more consequential is the selection and confirmation of the next Supreme Court justice. It is that person who could tip the balance of the court for a generation.●
Shirley J. Wilcher, JD, CAAP, is the executive director of the American Association for Access, Equity, and Diversity. She served as director of the OFCCP from 1994 to 2001. Wilcher is also a member of the INSIGHT Into Diversity Editorial Board. The AAAED is partner of INSIGHT Into Diversity.