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  • Ashley N. Baker

Gorsuch Proves a Solid Conservative on Court's Final Day

The following is the statement of Committee for Justice president Curt Levey:

While there were no retirement announcements at the Supreme Court today, conservatives hope that the much-predicted departure of Justice Anthony Kennedy will soon pave the way for President Trump to put a dependably constitutionalist -- or "textualist" if you will -- majority on the Supreme Court for the first time since the 1930's. That hope, however, depends entirely on the proposition that President Trump can be relied upon to put conservative justices on the Court (we would not be talking about the first conservative majority in 80 years if GOP presidents could be assumed to be reliable). That proposition got a big boost today from the record of Justice Neil Gorsuch on the final day of the 2016-17 term.

In several notable cases today, Justice Gorsuch took a broad and principled constitutionalist approach that went beyond what one or more of his conservative colleagues were willing to do. In the "travel ban" cases, the Court reached a compromise in partially staying preliminary injunctions issued by lower courts. Gorsuch, however, joined a concurrence by Justice Thomas that argued for giving full effect to the President's broad statutory and constitutional authority to limit immigration.

In the day's other high profile decision, Trinity Lutheran Church v. Comer, an important victory for religious liberty, Justice Gorsuch joined the Chief Justice's majority opinion ruling that a church cannot be denied government funding for a secular project simply because it is a religious institution. However, Gorsuch went further, writing a concurring opinion that would have given full meaning to the First Amendment through a broader ruling.

Gorsuch also shined in Pavan v. Smith, a summary reversal of the Arkansas Supreme Court that ominously extended the Supreme Court's discovery of a constitutional right to gay marriage with very little legal reasoning. Gorsuch dissented, writing that "nothing in Obergefell spoke (let alone clearly) to the question whether … rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate [are unconstitutional.]"

In Peruta v. California, a challenge to California's general prohibition on carrying firearms in public, Gorsuch joined Thomas's dissent from the denial of certiorari (review). Gorsuch thus made it clear that he understands that, while the Second Amendment permits some narrowly tailored restrictions on gun ownership, no constitutionalist reading of the amendment can justify California's general prohibition.

In all four of these important cases today, President Trump's first appointee to the Supreme Court showed himself to be an unabashed defender of constitutionalism. That says a lot about both what Gorsuch will be like as a Supreme Court Justice and what the President can be counted on to do as more High Court vacancies occur. Conservatives hoping for a solid conservative majority on the Court in the near future had good reason to cheer today.

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