Shifted Justice: On the Nuclear Option and the Nomination of Neil Gorsuch

Eugene Smith

Clara Curbera

Clara Curbera

With a vote of 54-45, former Federal Judge Neil Gorsuch has been confirmed as the next associate justice on the Supreme Court, replacing the late Antonin Scalia. This confirmation, however, did not come without a fight: Senate Republicans had to bend the rules to fill the seat which should not even belong to Mr. Gorsuch.

For 239 days, Barack Obama’s nominee to fill the vacancy, Merrick Garland, continually waited for a hearing and vote for his placement on the Court. However, when the 114th Congress ended on January of 2017, so did Garland’s chances of making it onto the bench. After the 114th conservative Congress stripped President Obama of his constitutional authority to fill vacancies on the Supreme Court, the conservative 115th Congress has taken the open seat and handed it to Trump’s conservative nominee. That being said, while Republicans have a majority in the Senate (52-46), they do not have a supermajority, therefore it would take a bipartisan effort to successfully confirm a Supreme Court Justice and end any debate regarding a nominee. They used the same tool used against them in 2013. The same tool that Democrats used to confirm three judges to the federal district court of appeals. The “nuclear option”.

Under the nuclear option, the power of the filibuster is severely weakened, seeing that the number of votes needed to end discussion on a topic prior to voting is reduced from 60 to just 51. Without the filibuster, Senators who reign within the minority party are rendered weak and face the threat of being ignored and overlooked. In theory, without the threat of the filibuster, the majority party, in this case Republicans, does not have to worry about log rolling, or any means of compromise to advance legislation. In practice, however, the act of completely steamrolling the opposing party in Congress is quite foolish. Due to the sheer fact that there are congressional elections every two years, there is no guarantee that a party will stay in power after an election. The United States has a government which honors precedent, and no party in their right mind (hopefully) would establish such a dangerous precedent.

So where does all of this leave us now? Mr. Gorsuch, soon to be Justice Gorsuch, has earned a seat on the bench, and by looking at his past record, we can expect him to end the Court’s 4-4 split in favor of conservatives. Just like his predecessor, Gorsuch subscribes to the judicial interpretation style of “originalism”, first popularized by Scalia himself. Justice Scalia gave a very clear distinction of the role of a Supreme Court Judge:

“Apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

Under this doctrine, one has to question his views on substantive due process; the very concept that paves the way way for legislative protection of our rights, like privacy. Nevertheless, it's not just his views on substantive due process, but looking at his voting history, we can see exactly why Gorsuch received this nomination. In the case of Planned Parenthood Association of Utah vs. Herbert, Justice Gorsuch went out of his way to grant the governor of Utah to strip Planned Parenthood of funding, a move that his colleague called “unusual” and “extraordinary”. When it comes to a defendant's right to counsel, Gorsuch holds little emphasis on whether or not it's “effective,” seeing as he dissented in Williams vs. Jones, a case which ruled a defendant’s rights were violated because their counsel wrongly interpreted the law. Or looking at his opinion in Burwell vs. Hobby Lobby Stores, Inc., we see that, he too, believes employers do not have to provide female employees with health insurance that covers contraceptives, solely because of the fact contraceptives violate employer's religious beliefs.

While we cannot be completely sure about what will happen once Gorsuch starts hearing arguments in the Court, if his past rulings are any predictor of the future we can expect the Court to have a conservative leaning once again, thanks to Trump's new nominee. When it comes to the Court, the only thing we can do now is hope Ruth Bader Ginsburg holds out for another four years so Congress doesn't have the chance to invoke the nuclear option once again and give conservatives control of the Court for years to come.