When Justice Antonin Scalia died last February 13, then-candidate Donald Trump said that if he were elected he would appoint somebody in the mold of Scalia to take his place. This was in the context of Senate Majority Leader Mitch McConnell’s statement, immediately after the announcement of Scalia’s death, that the Republican majority in the Senate would not consider, much less confirm, anyone nominated by President Obama to fill that seat. As far as the Senate majority was concerned, Obama had gotten his two seats on the Court in his first term, with the appointments of Justices Sonia Sotomayor and Elena Kagan, and was entitled to no more. They saw the Scalia seat as theirs.
As a practical matter, looking back over the last several decades, presidents have generally gotten to fill at least two seats on the Court, as was the case with Presidents Obama, George W. Bush, Bill Clinton, and George H.W. Bush. Ronald Reagan got to appoint four (but had to nominate six to get there, as two nominations foundered), but Reagan came to office following a president who got to make no Supreme Court appointments, Jimmy Carter, so it is not surprising that he had more openings to fill. Carter’s predecessor, Gerald Ford, had only one appointment during his partial term after Richard Nixon’s resignation in disgrace, and Richard Nixon had four appointments, but his first one, Warren Burger as Chief Justice, should have gone to Lyndon Johnson, whose attempt to elevate Abe Fortas to Chief Justice on the retirement of Earl Warren misfired, resulting in Warren postponing his retirement until after Nixon took office. The four Democratic appointees on the current eight-member Court were nominated by Clinton and Obama, and the four Republican appointees were nominated by Reagan, Bush I and Bush II. At his death, Scalia was the senior member in terms of years of service, having taken the bench in 1985.
The initial reaction to the Gorsuch nomination by some Supreme Court observers was that it essentially restores the ideological balance of the Court that existed prior to Scalia’s death. Setting aside the many cases each term that the Court decides by unanimous or near-unanimous votes, ideological balance comes into play on issues where there is a sharp divide between progressives and liberals, generally Democrats, and conservatives, generally Republicans. Those are the cases decided 6-3 or 5-4, and since Scalia’s death the Court has deadlocked 4-4 on some significant cases, resulting in leaving lower court decisions in place without creating a new national precedent.
The opening created by Scalia’s death could have been of monumental significance had the Senate given the usual consideration and vote to Court of Appeals Judge Merrick Garland, Obama’s nominee. Garland’s confirmation would have reduced the deeply conservative contingent of the Court to three members, as against a Democratic majority plus Anthony Kennedy, a Reagan appointee who sits at the ideological center of the Court, tipping the balance one way or the other on a case by case basis. Although Garland’s record on the D.C. Circuit suggests a centrist judge without strong ideological leanings, that would place him somewhere between Kennedy and the incumbent Democratic appointees on the ideological scale. Most significantly, Garland’s confirmation would have given the Supreme Court a Democratic majority for the first time since the Lyndon Johnson administration in the 1960s.
A group of academics from University of California at Berkeley, Professors Lee Epstein, Andrew D. Martin and Kevin Quinn, released a study on December 14 analyzing how the Court’s ideological disposition would be affected by the appointment of those on Trump’s previously announced lists, which were based on suggestions he received from conservative think-tanks. They concluded that most of the sitting judges on that list, based on close scrutiny of their judicial records, would have voting patterns similar to Scalia and Samuel Alito, who was appointed by George W. Bush to the seat vacated by Sandra Day O’Connor, and whose appointment was then seen to have moved the Court rightward. They placed Alito and Scalia close together on the ideological scale, with Scalia slightly more conservative than Alito. They rated Gorsuch as among the more conservative judges on the list, and situated him on the ideological voting scale between Scalia and Clarence Thomas, but somewhat closer to Scalia. Thus, on balance, Gorsuch’s addition to the Court would move it to a more conservative disposition than it had before Scalia died, but probably without affecting how cases would have been decided had Gorsuch been sitting in Scalia’s chair for the past several terms of the Court.
Based on his writings on and off the bench, it is clear that Gorsuch is a committed “originalist” more in the mold of Thomas than of Scalia, who in recent years had taken to describing himself as a “faint-hearted originalist” because of his gradual acceptance of some constitutional interpretations that depart from what the founding generation might have thought constitutional provisions meant. Thomas, as shown in his dissenting opinion in Obergefell v. Hodges (the marriage equality case), clings to archaic constructions of constitutional language – such as the use of “liberty” in the due process clause – because they are the meanings that American and English lawyers would have attached to the term in 1791 when the Bill of Rights was adopted.
Gorsuch has not written any opinions for the 10th Circuit on LGBT issues, although he has joined two unpublished opinions written by other judges in cases filed by transgender plaintiffs.
In one, Druley v. Patton, 601 Fed. Appx. 632 (Feb. 3, 2015), an Oklahoma state prisoner was incarcerated in 1986, at which time she had already gone through gender transition but had been housed in a men’s prison. She complained that over the years there had been frequent interruptions in hormone treatments provided by the prison, as well as failure to maintain the dosages she claimed were appropriate, and that her request to be allowed to wear feminine underwear had been denied. The case came before a 10th Circuit panel after the district court denied Druley’s request for a preliminary injunction, upon the recommendation of a magistrate judge. Druley was representing herself, and her complaint had obvious flaws that made it unlikely she would succeed, but the biggest problem she faced was that a 10th Circuit panel had ruled in 1986 that transgender inmates do not have a constitutional right to receive hormone therapy. See Supre v. Ricketts, 792 F.2d 958 (10th Cir. 1986).
Although 1986 is practically the dark ages in terms of federal jurisprudence about gender identity issues, that panel decision has never been overruled, and is thus binding on courts in the 10th Circuit until the issue is decided by the Supreme Court or if an expanded en banc panel of the 10th Circuit decides to overrule it. Thus, it is not surprising that the magistrate recommended dismissing the case. In addition, Druley had not suggested to the court what the appropriate dosage of hormones would be, asserting that the prison should follow the treatment levels suggested by the World Professional Association for Transgender Health (WPATH), which has been recognized as authoritative by many federal courts.
Furthermore, as Circuit Judge Jerome Holmes, writing for the panel that included Gorsuch, pointed out, the “Standards of Care” published by WPATH “are intended to provide flexible directions” and leave it up to individual professionals and organized programs to modify as particular cases require. As Druley had presented “no evidence that the [Oklahoma Department of Corrections] defendants failed to consider the WPATH’s flexible guidelines, failed to make an informed judgment as to the hormone treatment level appropriate for her, or otherwise deliberately ignored her serious medical needs,” she could not meet the 8th Amendment standard of showing it likely that she could persuade a court that ODOC was “deliberately indifferent” to her serious medical condition. She asserted that she received no hormone therapy at all from 1988 until 2011, when ODOC finally began providing therapy, but her quest for injunctive relief was to force them to increase her dosage, not to seek damages for her past deprivation.
Perhaps more significantly, the court also rejected her challenge to the prison’s refusal to let her wear feminine underwear or to be moved to a different building in order to alleviate an asthma condition. These issues would not normally raise constitutional concerns under the 8th Amendment, and in the context of a 14th Amendment equal protection challenge, Druley again confronted the problem of existing 10th Circuit precedents from 2007 and 1995, holding that transgender people are not a “suspect class” and thus can be subjected to unequal treatment if there is a legitimate purpose for the treatment. See Etsitty v. Utah Transit Authority, 502 F.3d 1215 (2007); Brown v. Zavaras, 63 F.3d 967 (1995). In this case, wrote Judge Holmes, “Ms. Druley did not allege any facts suggesting the ODOC defendants’ decision concerning her clothing or housing do not bear a rational relation to a legitimate state purpose.”
Rejection of Druley’s 8th and 14th Amendments claims was premised on prior 10th Circuit precedent that was binding on the court and that could only be changed by Supreme Court or 10th Circuit en banc overruling. It is difficult to read much into this opinion concerning the views of Judge Gorsuch, who merely signed on to this opinion.
In the other case, Gorsuch was sitting as a guest in the U.S. Court of Appeals for the 9th Circuit, which was considering a restroom access dispute involving a transgender instructor and graduate student at an Arizona community college, Kastl v. Maricopa County Community College District, 325 Fed. Appx. 492 (2009). Rebecca Kastl, a transgender woman who was presenting as female but had not yet had sex reassignment surgery, was banned by the college from using the women’s restroom after other women complained about a “man” in their restroom. After these complaints the college did not renew her teaching contract. Kastl filed sex discrimination claims under Title IX and Title VII, but the district court in Arizona granted summary judgment to the college. See 2006 WL 2460636.
The 9th Circuit’s unpublished 2009 decision is a “Memorandum” not attributed to any of the individual judges on the three-judge panel, so it could be by Gorsuch or more likely was drafted by a clerk and then approved by the panel. The opinion acknowledges that a transgender person could pursue a sex discrimination claim under both Title VII and Title IX using a sex-stereotyping theory to come within the scope of the statute. But that is, of course, only the first step in a discrimination case. After finding that Kastl’s complaint had stated a prima facie case of gender discrimination, the court found that the college had “satisfied its burden of production under the second stage” of the analysis by presenting evidence that “it banned Kastl from using the women’s restroom for safety reasons.” At that point, Kastl would have to show that this reason was a pretext for discrimination, but the court found that she “did not put forward sufficient evidence demonstrating that MCCCD was motivated by Kastl’s gender.” Thus, the college was entitled to summary judgment. By the same token, the court rejected Kastl’s arguments based on constitutional claims of privacy and protected expression.
The court added a footnote that tended to undermine the reasonableness of its ruling. “We note that the parties do not appear to have considered any type of accommodation that would have permitted Kastl to use a restroom other than those dedicated to men. After all, Kastl identified and presented full-time as female, and she argued to MCCCD that the men’s restroom was not only inappropriate for but also potentially dangerous to her.” The footnote suggests some sensitivity to Kastl’s concerns, but not enough to cause the appellate panel to reverse the summary judgment.
This opinion, more than the prison ruling, might say something about Gorsuch’s opinions about discrimination claims by transgender students and employees of public colleges, and is perhaps more salient than the Druley case in figuring out Gorsuch’s views, since the anonymously authored opinion might conceivably be by him and, at least, he voted to adopt it. In this case, by the way, the plaintiff was represented by a Tucson attorney, Andrew Martin Jacobs, and Lambda Legal filed an amicus brief by F. Brian Chase in support of Kastl’s appeal.
The most important LGBT rights decisions by the 10th Circuit in recent years, its two rulings striking down bans on same-sex marriage in Utah and Oklahoma, were decided by three-judge panels that did not include Gorsuch. Although he had already begun serving on the court, Gorsuch was also not on the panel that decided Etsitty v. Utah Transit Authority, a 2007 decision noted above that rejected the argument that gender identity was a suspect classification in the context of a transgender public employee’s equal protection claim.
Although Gorsuch is thus not “on the record” directly on LGBT issues, his overall record suggests that there are good grounds for the LGBT community to oppose his confirmation. He was part of the 10th Circuit en banc panel in the infamous Hobby Lobby case (see Hobby Lobby Stores v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), and contributed his own concurring opinion, 723 F.3d at 1152-1163, containing language suggesting that he would support broad religious exemptions from antidiscrimination laws.
Now pending before the Supreme Court is a petition to review a case from Gorsuch’s home state, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, in which the state courts upheld a ruling that a baker violated the state’s public accommodations law by refusing on religious grounds to bake a wedding cake for a same-sex couple. If that petition is granted (and the Court recently requested that the record be sent up by the Colorado courts after listing the petition for discussion at its last two conferences, signaling interest in the case) and Gorsuch is quickly confirmed, it could be among the first cases argued after he takes his seat. (The Court has scheduled arguments through the end of February, and is scheduled to conclude hearing arguments for this term in April.) Gorsuch’s strong solicitude for religious freedom claims suggests he would be very receptive to the baker’s arguments.
In an essay he published in 2005, Gorsuch expressed opposition to civil rights impact litigation, characterizing it as an attempt by liberal groups to advance their agenda through the courts rather than through the democratic process of legislation. He left no doubt that he would have rejected an attempt to get a court on which he sat to order states to allow same-sex marriages, based on his view that such policy issues should not be decided in the courts. His views on this are consistent with those of the four Obergefell dissenting justices. (Chief Justice Roberts famously stated at the end of his dissent that the Court’s decision had “nothing to do with the Constitution.”)
Although Gorsuch also has not ruled in an abortion case, he joined a dissent from the 10th Circuit’s refusal to reconsider a panel ruling that a religiously-affiliated organization with religious objections to contraception methods that it deemed to be a form of abortion could be required under the Affordable Care Act to notify the government of its objections in order that the government arrange for the contraceptive coverage through alternative means. See Little Sisters of the Poor Home for the Aged v. Burwell, 799 F.3d 1315 (10th Cir. 2015). The dissent endorsed the argument that the organization’s refusal to be complicit in any way with providing coverage – even through such a minimal requirement as notifying the government that the organization would not provide the coverage – placed a substantial burden on the organization in violation of the Federal Religious Freedom Restoration Act.
Gorsuch appears to place such heavy weight on an expansive reading of the Free Exercise Clause that it would not be much of a stretch to suggest that he might be willing to overrule the Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990, opinion by Scalia), an important case holding that the 1st Amendment does not privilege people to violate neutral state laws of general application based on their religious beliefs. This ruling led to the enactment of federal RFRA and subsequent state RFRA statutes, which are now at the heart of arguments that people with religious objections to same-sex marriage or gender transition should be excused from complying with anti-discrimination laws. There is widespread speculation that the Trump Administration may release an Executive Order allowing federal contractors and federal employees to discriminate in providing services and making employment decisions based on religious beliefs. Such an Order would undoubtedly be challenged in litigation that could end up in the Supreme Court.
Gorsuch was unanimously confirmed by the Senate on a voice vote after his nomination to the 10th Circuit by President Bush. He has all the credentials that suggest an easy confirmation: elite education (Columbia, Oxford, Harvard Law), federal clerkships (including the Supreme Court), practice in a big firm, service as a federal appeals judge, no scandal attached to his name and a reputation as a collegial judge who writes in a clear, conversational style without the kind of hyperbole, venom and sarcasm that Scalia employed in his dissenting opinions. Gorsuch has been a frequent dissenter on the 10th Circuit, but his dissents are temperate and dispassionate in tone and closely reasoned, although they frequently rest on conservative premises that most progressives would instinctively reject. He can’t be opposed as technically unqualified, but he can be characterized as far to the right of the judicial “mainstream,” justifying firm opposition to the nomination by those concerned with LGBT rights, reproductive rights, and the ability to live in a civil society that does not countenance disadvantaging people because of the religious beliefs of legislators or employers. Although Gorsuch’s appointment would not change the Supreme Court line-up from the DOMA and marriage equality cases, it might well affect future LGBT rights disputes at the Court, such as the pending transgender discrimination case under Title IX and religious exemption cases and, of course, it would be a step towards the Republicans’ ultimate goal of cementing an extreme right-wing majority on the nation’s highest bench.