“[T]he Worst Kind of Justice” – Justice Gorsuch, Slatesplained

Yesterday marked the end of the Court’s October Term 2016, meaning the last few cases yet to be decided were announced and various pending matters were otherwise disposed of (deets on that can be found here and other forthcoming summaries). It was a pretty typical end-of-term day, what with big cases granted cert for argument next term, an interesting constitutional decision announced, and the commentariat atwitter just trying to keep up.

I don’t make it a habit of checking Slate‘s hot takes, so it was not until a friend called my attention to an afternoon post by one of their legal writers (a former law school classmate, though we never met, undoubtedly due in part to Georgetown’s one consistently top-ranked metric) that I came across this gem: “Neil Gorsuch Is Everything Liberals Feared–and More.” With a title like that, I was sure the article was a paragon of well-reasoned argument and rhetorical restraint–not. So, what has instilled so much fear in Mark Joseph Stern that he needs to warn his co-religionists fellow liberals about the nightmare that is Justice Gorsuch?

On Monday, Justice Neil Gorsuch revealed himself to be everything that liberals had most feared: pro-gun, pro–travel ban, anti-gay, anti–church/state separation.

First, a quibble over semantics–“revealed himself” makes it sound like Justice Gorsuch was some unknown quantity before he got to the bench, which he emphatically was not given his ten years of service as a judge on the Tenth Circuit. At any rate, was yesterday such a revelatory day at the Court that Stern felt suddenly moved to recant his prior position that “Neil Gorsuch Is Not a Villain,” but is a “judge’s judge” who was “difficult to object to on personal or jurisprudential grounds”? Apparently to him, it was. Why?


First, Justice Gorsuch allegedly “indicated that he opposes equal rights for same-sex couples” and that “he may not accept Obergefell as settled law and may instead seek to undermine or reverse it.” One, of course, might not necessarily fault a skeptic of the decision itself, even if one agrees with the outcome, given that even liberal commentators have recognized that Obergefell was “a muddled, unconvincing opinion” that was “kind of a disaster.” That point aside, however, what was it that Justice Gorsuch said or did on Monday that caused such a kerfuffle over in the editorial section at Slate regarding the Justice’s views on gay marriage? Well, he dissented from a per curiam summary reversal involving an in-the-weeds Arkansas birth certificate law that the Court found was enforced in such a manner so as to deny same-sex couples who had children the full “constellation of benefits that the States have linked to marriage” that Obergefell guaranteed to them. Obergefell v. Hodges, 576 U.S. ___ (2015) (slip op. at 17).

Did Justice Gorsuch, joined by Justices Thomas and Alito, denounce Obergefell as “not correct when it was decided, and . . . not correct today“? Actually, kind of the opposite–Justice Gorsuch stated unequivocally that “Obergefell addressed the question whether a State must recognize same-sex marriages,” and he applauded the Arkansas Supreme Court for issuing “an opinion that did not in any way seek to defy but rather earnestly engage Obergefell.” His main quibble was in the Court’s decision to dispose of the case by way of summary reversal–a disposition “usually reserved for cases where ‘the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.'” Pavan v. Smith, 582 U.S. ___ (2017) (slip op., at 1) (Gorsuch, J., dissenting) (quoting Schweiker v. Hansen, 450 U.S. 785, 791 (1981) (Marshall, J., dissenting)). In this case, Justice Gorsuch felt that “nothing in Obergefell spoke (let alone clearly)” to whether or not Arkansas’s birth certificate rules became unconstitutional after that decision. Id. By Gorsuch’s lights, the statutory scheme at issue “establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate.” Id. The state argued these rules were in place to “ensur[e] government officials can identify public health trends and help[] individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders”–reasons that, according to Gorsuch, “in no way offend Obergefell,” as the Arkansas Supreme Court had held. Id.

Justice Gorsuch went on to explain–fairly, in my opinion and based on my reading of the per curiam decision–that nothing in the per curiam “purport[s] to identify any constitutional problem with a biology based birth registration regime,” which was what the challenged statute implemented. Id. at 2. As such, again, his issue was that “summary reversal would not exactly seem the obvious course” in such a situation. Id. And he’s right–even when the Court believes a lower court decided a matter wrongly, it is rare for an error to be “so apparent as to warrant the bitter medicine of summary reversal.” Spears v. United States, 555 U.S. 261, 268 (2009) (Roberts, C.J., dissenting).

What appeared to be the issue in the case, at least to me when I first heard of it, was the risk of pretextual rationalizations proffered by the state in order to circumvent the same-sex marriage equality mandates of Obergefell. Yet, as Justice Gorsuch points out, even those concerns were mitigated by the state’s repeated concessions in the litigation “that the benefits afforded nonbiological parents” under the birth certificate rules “must be afforded equally to both same-sex and and opposite-sex couples,” and that “when it comes to adoption . . . adopting parents are eligible for placement on birth certificates without respect to sexual orientation.” Id. at 3.

Worse yet was the fact that “it is not even clear what the Court expects to happen on remand that hasn’t happened already.” Id. “The Court does not offer any remedial suggestion, and none leaps to mind.” Id. The Court’s summary treatment of the matter thus seemed, at the very least, imprudent, given they did not even provide a clear remedy to implement on remand.

Thus, Justice Gorsuch’s alleged opposition to “equal rights for same-sex couples” turns out to be little more than a procedural spat over the majority’s disposition of a case without full briefing or oral argument, when the actual effects of the law at issue appeared unclear and the state had conceded that same-sex couples had to be treated just like opposite-sex couples in various hypothetical circumstances that might arise under the state’s birth certificate rules. Now, it’s entirely possible that Justice Gorsuch would have been proven wrong after a full presentation on the merits–which was his point entirely. The majority articulates why they view the law as offensive to Obergefell, to wit, that “Arkansas has . . . chosen,” contrary to their proffered justifications for the law, “to make its birth certificates more than a mere marker of biological relationships.” Id. (per curiam) (slip op, at. 4-5). And they may be right; the Arkansas Supreme Court was divided on the question. That’s what briefing and argument is meant to resolve.

The bottom line, however, is that this case was not tantamount to a judicial referendum on Obergefell, meaning that Gorsuch’s dissent is not the harbinger of doom Stern would lead his readers to believe. Don’t let the messy nuances of the facts get in the way of a simplistic narrative, however. “Donald Trump’s judge is doling out Mike Pence’s justice,” declared a similar sub-headline over at “ThinkProgress” (disclaimer: LDB cannot verify whether much of either is being fostered and encouraged at that site). According to Stern at Slate, “Gorsuch’s dissent suggests he may not accept Obergefell as settled law and may instead seek to undermine or reverse it.” I can’t decide what that assertion is more: farcical or histrionic. Either way, it’s wrong.


Second, “Gorsuch . . . joined Thomas in dissenting from the court’s refusal to review a challenge to California’s concealed carry laws.” Stern finds this mortifyingly reactionary: “[n]ot even the archconservative Alito joined their bizarre opinion,” he opined, as if that is a sign of how extreme this dissent was. This is evidently proof that “Gorsuch is eager to strike down almost any law that limits the right ‘to keep and bear arms’ in any way.”

Again, I can’t decide: does this characterization simply stem from Stern’s ignorance of the facts of the case, or is it deliberately misrepresentative and sensationalist? Having followed Peruta closely since shortly after its inception, having overseen the production of a journal symposium issue on contemporary issues regarding the Second Amendment, and even having had to delay publication of that issue specifically on account of revisions that needed to be made after the Ninth Circuit’s en banc decision in Peruta, I speak with confidence when I say that Stern’s depiction of the matter is grossly hyperbolic.

Before “the 9th U.S. Circuit Court of Appeals upheld the California regime” at issue in the case, a panel of that same court had ruled in favor of the petitioners who were challenging California’s laws relating to public carry of firearms. Was that panel decision “bizarre,” too? Were the four Ninth Circuit judges who dissented from the en banc reversal of the panel “bizarre”? Was the Seventh Circuit “bizarre” for recognizing five years ago (in a decision penned by Judge Posner, no one’s exemplar of an “archconservative,” to be sure) what Justices Thomas and Gorsuch would have the Court finally answer for the nation now; that is, that “the constitutional right of armed self-defense is broader than the right to have a gun in one’s home.” Moore v. Madigan, 702 F.3d 933, 935 (2012).

So, is Gorsuch joining Thomas in dissenting from denial of certiorari in Peruta really a sign that Gorsuch would like to “effectively bar state and local governments from passing almost any kind of gun safety legislation”? No. More like Gorsuch would like to resolve a circuit split over the scope of a constitutional right–you know, the sorts of cases that the Court is most likely to grant cert to address. As Justice Thomas stated, “Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively.” Peruta v. California, 582 U.S. ___ (2017) (slip op., at 6) (Thomas, J., dissenting from denial of certiorari).

Also, Gorsuch’s ostensibly radical views, as ascertainable from his joining this dissent, are shared by mainstream legal scholars writing in the pages of the Yale Law Journal. So, who’s “bizarre”: Justice Gorsuch for his supposedly radical views on the Second Amendment (views shared by federal judges around the country), or Stern’s hysteria over those views over at Slate?


Third, Monday apparently revealed “Gorsuch’s deep hostility to the separation of church and state.” Gorsuch joined the controlling opinion in Trinity Lutheran, which, in Stern’s description, “held that, when a state declines to fund a church’s improvement project, it somehow violates the Free Exercise Clause of the First Amendment.” Stern finds Justice Sotomayor’s dissent in the case–a dissent only joined by one other justice–“vehement and impressive” for pointing out that the decision held “for the first time” that “the Constitution requires the government to provide public funds directly to a church.”

Stern finds disconcerting that Justice Gorsuch did not join in footnote three of the controlling decision written by the Chief, which sought to limit the holding as much as possible to the facts of the case–likely, an attempt by the Chief to corral the largest majority possible without having competing plurality opinions. To Stern’s displeasure, Gorsuch “wrote separately to declare that [he]’d go further, holding that any disparate treatment of religious organizations likely runs afoul of the Constitution.”

To put this meltdown in context, by way of background, the law at issue in Trinity Lutheran was a provision in the Missouri Constitution which prohibited the state from giving any money to a religious entity “directly or indirectly.” This provision, when enacted, foreshadowed a much broader adoption in the states of so-called Blaine Amendments, which were enacted almost solely due to anti-Catholic and anti-immigrant sentiment in a number of states in the mid-to-late 1800s.**

So, just to put a fine point on it, the Court just struck down the application of a law that is rooted in prejudice and bigotry against religious and ethnic minorities–and Mark Joseph Stern thinks Justice Gorsuch is a crypto-theocrat for wanting this decision to apply across-the-board rather than narrowly to the facts of this case. That’s extra funny when you consider that Stern, just over a month to the day yesterday, celebrated a certain Fourth Circuit decision that enjoined a certain executive action by the President after finding that it “drip[ped] with religious intolerance, animus, and discrimination,” thereby violating “one of our most cherished founding principles–that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another.” Stern went so far as to praise the legal theory underlying the challenge in that case–the “anti-animus principle” of the Establishment Clause, which contends that the First Amendment bars the government “from acting on the basis of animus toward religion in general, or animus toward a particular religious group.” At least we agree on something here–this is a “refreshingly common-sense theory” of the First Amendment. And it should apply across-the-board, not just in the cases that align with one’s preferred policy preferences.

Blaine Amendments have an unequivocal, invidiously discriminatory history, but Stern evidently thinks they are a-ok. I wonder how he would feel if the facts were tweaked and, instead of the law applying to deny generally-available grant funds intended for secular purposes to a church solely because it was a church that sought it, the amendment was enacted out of anti-Muslim-immigrant sentiment and applied to deny generally-available grant funds intended for secular purposes to a mosque solely because it was a mosque that sought it. I don’t think we need to think too hard about that thought experiment . . . . At any rate, the reactionary here appears to be the one leveling the accusation rather than the accused.


Fourth, Stern tosses in his disapproval of Gorsuch’s position in Trump v. IRAP that the travel ban should be allowed to “take effect in its entirety, as he believes it to be lawful.” We aren’t treated to any rationale as to why this is terrible, except that this somehow proves “fantasy” the idea that Gorsuch would “stand[] up to Trump.” To hell with the law, I guess–Gorsuch is a terrible jurist because he won’t decide cases solely based on the impulse to stick a finger in the eye of the President, but rather attempts to apply the pertinent law and to be “guided by sound legal principles.” Trump v. IRAP, 582 U.S. ___ (2017) (slip op., at 1) (Thomas, J., concurring in part and dissenting in part) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)).


“When Trump first nominated Gorsuch,” Stern concludes,

I felt cautiously optimistic that Gorsuch might be less of a hard-line conservative than liberals believed. I was wrong. Gorsuch is the worst kind of justice. He is a reactionary who dresses up his cruel, antediluvian views in folksy charm; who professes restraint while espousing extreme, sweeping views; who has no sympathy for vulnerable minorities but believes Christians are being oppressed. And he will guide the course of the law for the next 30 years or more. He is a catastrophe for proponents of civil rights and equal justice. And his influence over the court only stands to grow. This country is in terrible trouble.

“[W]orst kind of justice,” “reactionary,” “cruel,” “antediluvian,” “extreme,” “a catastrophe,” “terrible trouble”–as I write this, I am still laughing at the absurdity of this histrionic tantrum.

Here’s one more thing we agree on. I am also concerned for this country–because someone like this author commands a wide readership despite either 1) ignorance over the subject matter he opines on with ostensible authority, or 2) patent intellectual dishonesty accompanied by hysterics that will only serve to inflame those among his audience who don’t know any better.

I have no trouble calling out my own team’s bullshit, so I’m not inclined to pull punches here now. Let me be blunt: if this is the caliber or character of expert we can expect in the next generation, count me among the plebeians in revolt. Hey–does this count as me speaking truth to power?


**With gratitude to Jonathan Adler for input leading to a small tweak to this paragraph about the history of the provision in the Missouri Constitution and the later-in-time adoption of the Blaine Amendment in other states.

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