SCOTUS Nominee Neil Gorsuch: Where He Stands on Civil Rights, Reproductive Justice, the Environment and More

By Colorlines Staff Feb 01, 2017

President Donald Trump nominated Neil Gorsuch to serve on the Supreme Court yesterday (January 31). If confirmed, he would break the current court’s ideological deadlock brought on by the death of Antonin Scalia. Here’s where the 49-year-old, Colorado-based federal judge for the 10th Circuit Court of Appeals stands on all the issues, from the arts to reproductive justice.

Gorsuch is firmly conservative.
Gorsuch is a conservative jurist who The Washington Post reports as being in favor of interpreting the Constitution as it was understood when it was written and ignoring legislators’ intent.

He is also concerned about the impact of progressives. “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education,” he wrote in a 2005 National Review article. He goes on to lament what he calls the “politicization of the judiciary”:

At the same time, the politicization of the judiciary undermines the only real asset it has—its independence. Judges come to be seen as politicians and their confirmations become just another avenue of political warfare. Respect for the role of judges and the legitimacy of the judiciary branch as a whole diminishes. The judiciary’s diminishing claim to neutrality and independence is exemplified by a recent, historic shift in the Senate’s confirmation process. Where trial-court and appeals-court nominees were once routinely confirmed on voice vote, they are now routinely subjected to ideological litmus tests, filibusters, and vicious interest-group attacks. It is a warning sign that our judiciary is losing its legitimacy when trial and circuit-court judges are viewed and treated as little more than politicians with robes.

This statement is ironic considering that the Republican party refused to hold a confirmation hearing for President Barack Obama’s proposed nominee to the Court ahead of the election in hopes of installing its own pick. There have already been calls for Dems to #FilibusterGorsuch, and Oregon senator Jeff Merkley has vowed to keep him off the Court, saying “This is a stolen seat being filled by an illegitimate and extreme nominee, and I will do everything in my power to stand up against this assault on the Court.”

Gorsuch is not a fan of (a specific type of) overcriminalization.
In 2013, Gorsuch delivered 13th Annual Barbara K. Olson Memorial Lecture at the Federalist Society’s National Lawyers Convention. In his speech, he says that there are too many laws:

Whether because of public choice problems or otherwise there appears to be a ratchet, relentlessly clicking away, always in the direction of more, never fewer, federal criminal laws. Some reply that the growing number of federal crimes isn’t out of proportion to our population and its growth. Others suggest that the proliferation of federal criminal laws can be mitigated by allowing the mistake of law defense to be more widely asserted.

But isn’t there a troubled irony lurking here in any event? Without written laws, we lack fair notice of the rules we as citizens have to obey. But with too many written laws, don’t we invite a new kind of fair notice problem? And what happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?

But he goes on to talk specifically about laws that impact businesses—not the type that disproportionately send people of color to prison. “Businessmen who import lobster tails in plastic bags rather than cardboard boxes can be brought up on charges. Mattress sellers who remove that little tag? Yes, they’re probably federal criminals too,” he says.

Gorsuch values religion over reproductive rights.
He joined the ruling that found that the Affordable Care Act’s contraception coverage violated Hobby Lobby’s religious liberty. From Slate:

In the 10th Circuit’s ruling, Gorsuch attributed to the company the capacity for spiritual reverie. The ACA forced Hobby Lobby to “violate their religious faith” by covering birth control, which “their religion teaches to be gravely wrong.” Gorsuch described birth control drugs and devices as having the effect of “destroying a fertilized human egg”—a claim that is demonstrably false, even in most cases of emergency contraceptive use.

He joined in another challenge to the ACA birth control mandate, too:

Gorsuch also joined a dissenting opinion when Little Sisters of the Poor v. Burwell, another challenge to the ACA’s contraceptive mandate, came before the 10th Circuit. The dissent called the mandate a burden to the plaintiffs’ free exercise of religion.

While he has not gone on the record with his thoughts on Roe v. Wade, his past rulings show that he doesn’t believe that public hospitals should be required to provide abortions. As cited by Slate: “In a 1996 amicus brief in a case about physician-assisted suicide, Gorsuch wrote that requiring public hospitals to provide abortions was an instance of ‘the courts [feeling] free to override the conscience of health care providers.”

Advocacy group Physicians for Reproductive Health issued a statement that strongly opposes Gorsuch:

The nomination of Judge Neil Gorsuch is deeply concerning, as President Trump has promised that any judge he nominates will overturn Roe v. Wade. Any prospective Supreme Court nominee must hold views consistent with the Constitution and settled law about a woman’s ability to make her own reproductive health decisions. That must include upholding Roe v. Wade—the law of the land for 44 years. Women rely on this decision every day…. As one of the 10th Circuit Court Judges who ruled in favor of Hobby Lobby, Judge Gorsuch put an employer’s personal beliefs over a patient’s right to access medical treatment. He has a record of undermining health care access for women and is not someone who will reject medically unnecessary restrictions that endanger women…. We cannot go backward, or it will be at the expense of the well-being of the women our physicians care for every day. These are our friends, sisters, mothers, and daughters as one in three women will have an abortion in her lifetime. We urge the Senate to reject Judge Gorsuch because he does not meet the essential qualifications for service on our highest court.

He may believe that defunding Planned Parenthood is legal…
…and that the debunked claims of fetal tissue sales are real. Per Slate:

More recently, Gorsuch wanted to rehear, and likely reverse, a 10th Circuit panel decision blocking Utah’s attempt to defund Planned Parenthood. The movement to defund Planned Parenthood by preventing patients from using Medicaid dollars on nonabortion services there has been based on false claims of illegal fetal tissue sales. Gorsuch gave credence to Utah Gov. Gary Herbert’s claims of such trafficking, which he proffered without any supporting evidence, instead of dismissing them as a political maneuver, as a majority of his fellow justices did.

Gorsuch is not a friend of the LGBTQ community.
He supported the 10th Circuit’s decision in Burwell v. Hobby Lobby Stores Inc., which concluded that a private corporation can deny employees healthcare coverage if it violates its religious belief, limiting contraceptive rights and opening the door for companies to block transgender people from hormone treatment. He also signed on to a ruling that barred a transgender woman who was incarcerated from accessing her medication.

The advocacy group Human Rights Campaign issued a statement yesterday (January 31), opposing the nomination:

The Supreme Court has played a central role in advancing the promise of equality for LGBTQ Americans, and Judge Gorsuch’s anti-equality record—from opposing crucial medical treatment for a transgender person to supporting a license to discriminate for private corporations—make him unfit to sit on the nation’s highest court. We cannot afford a justice who will roll back our rights, or who will be a rubber stamp for Donald Trump’s unconstitutional actions.

Gorsuch might not be a friend of the arts.
The Heritage Foundation, the conservative think tank that The Hill says architected Trump’s anticipated (but still-unconfirmed) National Endowment for the Arts and National Endowment for the Humanities defunding measures, issued a statement of support for the nominee:

Gorsuch is an eminently qualified and well-respected judge with a record that demonstrates he cares about religious liberty, the separation of powers, and the original public meaning of the Constitution and the laws he interprets. He would be a fine successor to Scalia.

Gorsuch’s positions on climate and the environment are unclear.
First, some history: His mother was Anne Gorsuch Burford, the first woman to head the EPA. Appointed by President Ronald Reagan in 1981, she cut the EPA’s enforcement budget by 45 percent within two years and deregulated industry. She was ultimately forced to resign during what The Washington Post calls “a scandal over mismanagement of a $1.6 billion program to clean up hazardous waste dump.”

But Gorsuch’s time as an appellate judge shows he might not support the coal industry the way his mother did. In July 2015, he ruled on the side of clean energy in Energy and Environment Legal v. Epell, when coal companies challenged a law that required utilities to source 30 percent of the electricity they sold to customers from renewable sources. And in 2007, Gorsuch blocked a coal mining company’s attempt to avoid paying benefits to an employee who was ill with black lung disease in Energy West Mining v. Johnson.

He doesn’t have much of a record on immigration or national security, but his other stances provide some insight.
While Gorsuch doesn’t have a clear record on immigration or national security cases, his decisions on civil rights issues may provide some insight. Civil rights groups, including The Leadership Conference on Civil and Human Rights, have roundly criticized him for his rulings curtailing the rights of women, workers, LGBTQ individuals and disabled people. From that group’s statement:

During his over 10 years on the federal bench, Gorsuch has proven to be a conservative ideologue who has consistently ruled against civil rights, women’s rights, and workers’ rights. And he has expounded a judicial philosophy that would prevent the federal government from properly enforcing countless acts of Congress. The president could have nominated an independent or consensus candidate for this seat, someone like Merrick Garland, whose record has proven to be unimpeachable. Instead he chose Neil Gorsuch to be a rubber stamp and yet another “yes man” for this administration.

In addition, Judge Gorusch has called into question a legal doctrine that gives government agencies the authority to implement their missions, ruling that courts can and should override the enforcement of regulations. Knowing how he would rule on cases that challenge the policies and practices of agencies that enforce immigration and national security will be key in an era of overarching executive power.