Gorsuch could be the next Supreme Court Justice. What does that mean for the president’s controversial executive order on immigration?
By Kate Wheeling
Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals. (Photo: Wikimedia Commons)
For nearly a year, the Supreme Court has been evenly divided between Republican and Democratic nominees. Tonight, President Donald Trump announced his pick to replace the late Justice Antonin Scalia: Judge Neil Gorsuch of the 10th United States Circuit Court of Appeals.
Scalia’s seat has remained vacant since his death last February. When President Barack Obama’s put forth his own pick for the SCOTUS, Merrick Garland, a Republican majority blocked the confirmation for months, leading to a few memorable deadlocks. Gorsuch is expected to tip the balance of power back toward the conservative bloc.
Trump’s nomination comes on the heels of his executive order on immigration. The constitutionality of that order has already been called into question. Indeed, Trump fired the former acting attorney eneral Sally Yates yesterday for questioning the legality of the order and instructing the Department of Justice not to enforce it. Even Obama, who vowed to give Trump time to govern before questioning his policies unless he felt they violated American values, has criticized the order. Through a spokesman, Obama voiced support for the weekend’s protestors and noted that he “fundamentally disagrees with the notion of discriminating against individuals because of their faith or religion.”
If confirmed, Gorsuchcould very well wind up ruling on legal challenges to the order. Which raises the question: What does his confirmation mean for the future of the immigration order?
Gorsuch, 49, surely meets Trump’s campaign promise to “appoint judges very much in the mold of Justice Scalia.” Gorsuch, like Scalia, is a proponent of originalism, or the interpretation of the Constitution as it was understood when it was written. He interprets the law according to its text, without consideration of the lawmakers’ intent or the consequences of implementation.
A graduate of Harvard Law School, Gorsuch is perhaps best known for his rulings in support of religious liberty, in particular for his ruling in favor of Hobby Lobby, the arts and craftsretail chain that argued the contraceptive mandate included in the Affordable Care Act—which required that employers provide insurance plans that cover contraceptives for female employees—violated the company’s religious beliefs.The Hobby Lobby case can provide some insights into how he would interpret Trump’s immigration ban, which opponents say unfairly discriminate against Muslims. In the Hobby Lobby ruling, Gorsuch wrote that “[the law] does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”
Gorsuch also came out against Obama for what he called “executive overreach”—the use of executive orders to get around legislative gridlocks. But that distrust of executive orders could actually put a damper on the flurry of unevaluated executive orders that have come out of the White House during Trump’s first week in office.
Of course, immigration is only one of several issues that the Supreme Court considers, and Senate Democrats vowed to filibuster any nominee put forth by Trump even before his announcement today. If they follow through, Gorsuchwill need 60 votes to be confirmed by the Senate—which means at least eight Dems will need to get on board. But if Republicans can’t get the numbers, they can always change the Senate rules with a simple majority to ease the confirmation of Trump’s pick.
