ONE year ago, Neil Gorsuch took the oath of office as America’s 113th Supreme Court justice. Donald Trump’s nominee to replace the late Antonin Scalia was confirmed in the Senate by a historically slim 54-45 margin more than a year after Republicans refused to even consider Merrick Garland, Barack Obama’s nominee. When Justice Gorsuch took his seat on the bench on April 10th 2017, the Supreme Court had only dozen cases left to be heard that term. Today, as Justice Neil Gorsuch nears the end of his first full term, he faces some difficult votes. He and his eight colleagues have considered a smaller caseload than usual. But it features some fraught cases: on labour arbitration; gerrymandering; searches and seizures in the digital age—as well as Mr Trump’s travel ban, financing for public-sector unions and LGBT discrimination.
Justice Gorsuch is, thus far, filling the role of a Republican-tapped jurist predictably, matching or surpassing his predecessor’s conservative credentials. But a few of this year’s pending cases may give Justice Gorsuch a sense of cognitive dissonance. In Masterpiece Cakeshop v Colorado Civil Rights Commission and Janus v American Federation of State, County and Municipal Employees, the newest justice will face a choice between the modest judicial role he often champions and the conservative change-maker persona some of his supporters—and his nominating president—hope he will embody.
In Masterpiece Cakeshop, the justices are asking whether a Christian baker who opposes same-sex marriage has a First Amendment right to refuse to make a wedding cake for a gay couple. Conservatives see this as the latest front in the culture war pitting advocates of traditional marriage against the LGBT rights movement. In Janus, unions for schoolteachers and other public workers face a challenge from workers opposed to subsidising their collective bargaining efforts. About half the states permit unions to charge non-members an “agency fee” to help them negotiate their contracts; Janus could end that, dealing a potentially crushing blow to America’s already flagging labour movement.
Justice Gorsuch is widely expected to vote in the conservative direction—permitting discrimination against gay couples and reining in the unions—in both cases. But if he does, those votes will strain commitments he had made in writing and in his Senate confirmation hearings to a restrained judicial role that bows to states’ rights and legislators’ views, on the one hand, and Supreme Court precedent, on the other.
In both Masterpiece Cakeshop and Janus, the ideologically conservative outcome would nullify or undermine laws passed by legislative majorities in twenty or more states. A win for the Christian baker would be a loss not only for LGBT people but for the 21 states and the District of Columbia that have decided to bar places of business from turning away customers based on their sexual orientation. A win for the workers disgruntled with their unions would not only spell trouble for the future of public-sector unions and the millions of workers they represent. It would tell nearly half the states that their favoured method of doing business with state employees (having a stable bargaining partner representing all workers in a sector) is suddenly out of the window.
Of course, one fundamental purpose of a judiciary enforcing a constitution is to stop the legislative branch from burdening people with oppressive laws. But both Masterpiece Cakeshop and Janus entail constitutional claims that, arguably, do not reside at the heart of First Amendment freedoms. They boil down to, respectively, a baker’s right not to speak through a wedding cake and a worker’s right to not to speak by paying union fees. Juxtaposing the tenuous connection to freedom of speech in both claims with the dramatic exercise of judicial power that would end how half of America organises public employment and chooses to treat its LGBT neighbours makes the conservative side of both cases look very much like the “judicial activism” those on the right often decry.
Justice Gorsuch’s first majority opinion last June, in Henson v Santander, closes with a paean to judicial minimalism. This was a brief, unanimous decision about how to construe a federal debt-collection law, but Justice Gorsuch went out of his way to pay homage to the separation of powers. There may be “colourable arguments both ways”, he wrote, but “these are matters for Congress, not this court, to resolve.” While “reasonable people can disagree with how Congress balanced the various social costs and benefits”, judges should not meddle. The “proper role of the judiciary” is “to apply, not amend, the work of the people’s representatives”. That sentiment may be hard to square with decisions striking down, on novel constitutional grounds, the work of the people’s representatives in such a large portion of the country.
In the Janus case, siding with anti-union forces would require a double dose of chutzpah. In addition to substituting his judgment for those of democratic majorities in nearly two dozen states that permit agency fees, Mr Gorsuch would be placing his first vote as a Supreme Court justice to overturn a long-enduring precedent of the Supreme Court, Abood v Detroit Board of Education. Abood, decided in 1977, says states may permit unions to charge non-members fees for collective bargaining, though not for their work on strictly political causes. As Justice Elena Kagan said during the oral argument, “I don’t think that we have ever overruled a case where reliance interests are remotely as strong as they are here.” Laws in 23 states would be upended “at once” and labour contracts would be invalidated for “maybe up to over 10m workers”. In his testimony before the Senate last year, Justice Gorsuch said precedents should not be abandoned lightly. “You don’t approach that question anew as if it had never been decided”, he said. “For a judge, precedent is a very important thing…We don’t go reinvent the wheel every day.” Judges must “start with a heavy, heavy presumption in favor of precedent,” he said, and previous cases should be overruled only in “a very few cases”.
Justice Gorsuch asked no questions during the Janus hearing—perhaps a sign he feels torn between personal misgivings about unions and his principle of respecting precedent and states’ ability to run their own affairs. If he ends up anchoring a conservative majority in Janus or Masterpiece Cakeshop, he will be following in the footsteps of another justice who at times strayed from his purported judicial philosophy. As Rick Hasen writes in “The Justice of Contradictions”, his new book on Justice Gorsuch’s predecessor, Antonin Scalia made grand overtures to the sanctity of the legislative process while striking down laws with little compunction—and sometimes even with disdain for legislators. In the Shelby County v Holder decision of 2013, he joined a 5-4 majority invalidating a key section of the Voting Rights Act, a law Congress had voted overwhelmingly to reauthorise several years earlier. The provision in question was a mere “perpetuation of racial entitlement”, he said during the Shelby County oral argument; the Supreme Court had to stop it or no one would. Mr Scalia’s “deference to democratic acts of legislative bodies”, Mr Hasen concludes, seemed to turn “on how much he liked the underlying law.”
How will the newest justice conclude his first full term? Mr Gorsuch insisted in the Senate chamber last year that he leaves his “personal views…at home”. A jurist’s “personal views about…precedent”, he said, “have absolutely nothing to do with the good job of a judge”.