BY: TANNER KENNEY
Yesterday, April 10th, 2018, marked the one-year anniversary of Neil Gorsuch’s ascendance to the position of Associate Justice of the Supreme Court of the United States (SCOTUS) following the death of Antonin Scalia. Gorsuch was confirmed by the Senate less than three months after he was nominated by President Donald Trump on January 31st, 2017. Sadly, and predictably, Gorsuch has acted in a manner that has most certainly pleased his initial supporters – political, personal, and financial, alike – and cemented himself as an intimidating conservative figure on the bench of the nation’s highest court.
At the same time, he has confounded historians and journalists with his overly verbose opinions, irritated observers and reporters with his penchant for interruption, and immediately drew the ire of his new colleagues, irrespective of their standing. And yet, all of this is to say nothing of the manner in which he rose to his current role with the Supreme Court, beginning with Senator Majority Leader Mitch McConnell refusing to allow a debate regarding then-President Barrack Obama’s nominee for the position, Judge Merrick Garland – an arguably better candidate for the position, given his experience.
McConnell then triggered the “nuclear option” and changed Senate rules to require merely 51% of the body to vote in favor of ending debate on Neil Gorsuch’s qualifications. Once this was accomplished, Gorsuch’s confirmation was merely a procedural vote as it also only required the approval of 51 of 100 Senators. The blockade, subsequent rule-change, and vote in the Senate has been continuously chastised, from all sides, as a ham-fisted (and now patently successful) attempt to circumvent the long-held processes of democratic checks-and-balances.
Oblivious to his dereliction of duty to his constituents, let alone the American people, Sen. McConnell has stated that the maneuver “was the most consequential decision I’ve made in my entire public career[,]” believing that this has had and will continue to have a positive impact on the nation. Traditionally, this mindset only applied to a small segment of the American population on both sides of the aisle.
For his part in this ordeal, Justice Gorsuch has not commented publicly about the confirmation process, the SCOTUS calendar – cases both accepted and declined – nor its decisions handed-down outside of his written opinions. And, on the bench, he has remained a staunch contextualist – a common Republican trait ideal for the party’s aspirations through the lens of the judicial branch as it allows for a given justice to examine both the original intentions of the lawmaker(s) as well as the context in which that intention is being examined.
However, this type of deliberation bears the potential for misuse as it essentially allows for the adjudicator to create a context for which the desired outcome can be presented in a positive manner, regardless of conflicting context. As has been the case with the family-first Republican party in the legislative and executive branches, in recent years, context-based morality has proven to be easily corrupted and nothing more than a hypocritical tool for individuals to call-out opponents whilst ignoring the hypocrisy of supporting President Trump and his administration.
This is not limited to the Republican party, by any stretch – however, as the party in control of the federal government, it is the moral responsibility of all those in positions of power to ensure equity and justice for the American people. Unfortunately, Neil Gorsuch has long embodied the principles of the hypocritical, morally corrupt individuals and organizations that support him throughout his nomination process, as evidenced by his more than 10 years spent on the 10th U.S. Circuit Court of Appeals in Denver, CO.
In the case of Hobby Lobby Stores vs. Sebelius, Justice Gorsuch argued that the Affordable Care Act “doesn’t just apply to protect popular religious beliefs: it 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.” My question to Justice Gorsuch is – how can one justify the support of “a refuge of religious tolerance” for one in the denial of equality to another?
Moreover, in the case of Planned Parenthood Association of Utah vs. Herbert, Gorsuch “joined a dissenting opinion arguing for a full court review” of a lower court’s decision to reverse Gov. Herbert’s revocation of funding to Planned Parenthood following “the release of videos — later disputed — regarding the alleged sale of fetal tissue.” The question for Justice Gorsuch here is – how can a major decision such as the denial of funding to a vital institution based on questionable evidence be upheld without a full review of the incident and the organizations business practices?
Lastly – and, as an environmentalist, perhaps most personally – in the case of Energy and Environment Legal Institute vs. Epel, Gorsuch chose to support “out-of-state coal producers” in dismissing the challenge brought against a lower court’s ruling in citing “the most dormant doctrine in dormant commerce clause jurisprudence.” In doing so, Justice Gorsuch indicated he is willing to ignore the most relevant law in favor of another when it suits an outcome that more closely aligns with his personal politics.
And to that, I must ask – how can one reach the highest levels of the judicial system without paying mind to the damage done to the very individuals the laws and regulations crafted by legislatures and executives were intended to protect? The answer to this question is mirrored by the nomination and confirmation processes for federal judges under the Trump Administration – a whirlwind, to say the very least, as Sen. McConnell noted that the 12 federal circuit judges his senate has confirmed are “more than the first year of any president since the circuit courts were created in 1891[.]”
While Gorsuch may be able to keep himself from reacting to praise from the President of the United States on the grandest of stages, his determination to succeed as a champion of ‘individual liberty’ and ‘free markets’ may very well do more damage to the nation than good. In his first year as Associate Justice, Neil Gorsuch’s staunch advocacy of protecting the rights of individuals and organizations that harbor intolerance towards others in the name of Constitutional contextuality is shameful, at best, and devastating, at worst.
Tanner Kenney is an energy and media professional with a background in journalism and received his M.S. in Global Affairs, Environment & Energy Policy from NYU’s Center for Global Affairs. Recently, Tanner has focused on the advocacy of sustainable development through renewable energy technologies, transportation efficiency, and inclusive public policy.
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