As Erick reported earlier today, Judge Neil Gorsuch of the Tenth Circuit might be clawing his way to the top of Trump’s SCOTUS short list. That’s cause for celebration – though perhaps with an asterisk.
SCOTUSblog recently explored Gorsuch’s quite impressive background:
He was a Marshall Scholar at the University of Oxford, graduated from Harvard Law School, clerked for prominent conservative judges (Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit, as well as Justices Byron White and Anthony Kennedy of the Supreme Court), and was a high-ranking official in the Bush Justice Department before his judicial appointment. He is celebrated as a keen legal thinker and a particularly incisive legal writer, with a flair that matches — or at least evokes — that of the justice whose seat he would be nominated to fill.
The post also includes a summary of Gorsuch’s opinions, which are “exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why.” When comparing Scalia’s and Gorsuch’s opinions, “some of the parallels can be downright eerie.”
So far, so good.
Indeed, the one subject in which Gorsuch’s opinions seem to differ (and differ in a good way) from Scalia’s concerns Chevron deference. Gorsuch is skeptical of the doctrine, which is a fancy-pants way of saying that he is less deferential towards federal bureaucratic strangulation of businesses and citizens than Scalia was.
In short, for Scaliaphiles like me, the nomination and confirmation of a Justice Gorsuch might be the next best thing to a Lazarus-style resurrection of Justice Scalia.
One subject worth extra scrutiny, however, is Gorsuch’s view of the Free Exercise Clause of the First Amendment. At first blush, his record might seem spotless on that subject, too. He authored an excellent concurring opinion in the Hobby Lobby case, which held that corporations couldn’t be forced to provide their employees with health insurance covering abortion. The Obama Administration got clobbered when it appealed that decision to the Supreme Court.
But the Hobby Lobby decision, excellent as it was, didn’t result from the Free Exercise Clause, but rather the Religious Freedom Restoration Act (RFRA). RFRA was passed by Congress in 1993 and signed by Clinton in response to Employment Dept. of Human Resources of Oregon v. Smith, a case in 1990 that essentially eviscerated the Free Exercise Clause. RFRA requires the federal government to give the same respect to religious liberties as it did before Smith.
So who authored the Smith decision that watered down religious liberties so much that they needed salvaging by Bill Clinton and a Democrat-controlled Congress? The justice you’d least expect – Antonin Scalia.
Most of the court victories achieved on behalf of religious liberties during the past two decades have occurred as a result of RFRA, not the Free Exercise Clause.
But RFRA only applies to federal, not state officials. This is a big deal because state authorities pose, at least for now, the most serious threat to religious liberties. Left-wing fascists at the state level have been persecuting, with impunity, Christian bakers in Colorado, florists in Washington state, and photographers in New Mexico. Believers’ only legal protection, more often than not, has rested upon the federal constitution’s Free Exercise Clause, a protection greatly weakened by Smith.
The Smith decision is arguably the only significant black mark on Scalia’s otherwise remarkable three decades on SCOTUS.
So does Scalia’s disciple agree with it?
If Gorsuch gets the nod from Trump, Republicans on the Senate Judiciary Committee should be prepared to grill him on Smith. If he’s critical of Smith, then he’s probably as good as (if not better than) Bill Pryor and Diane Sykes, two other appellate judges rumored to be at or near the top of Trump’s short list. If Gorsuch’s answer is less than reassuring, however, Senate Republicans will need to decide whether a weakened Free Exercise Clause is wise in an era when, thanks to forced secularization by state officials, you will be made to care.