Neil M. Gorsuch joins the Supreme Court just in time to cast potentially significant votes in cases that pit religious liberty against gay rights, test limits on funding for church schools and challenge California’s restrictions on carrying a concealed gun in public.
Such issues arise either in appeals filed by conservative groups that have been pending before the justices for weeks or in cases to be heard later this month.
Gorsuch’s votes in those matters may give an early sign of whether the court’s conservatives — with their 5-4 majority restored by his confirmation — will pursue an activist agenda.
The cases include a Colorado baker’s claim that he deserves a faith-based exemption from the state’s anti-discrimination law after he refused to design a wedding cake for a gay couple. The justices have been considering his appeal behind closed doors since December, but have taken no action.
The delay may mean one of the justices has been writing a dissent from the majority’s refusal to hear the appeal, or perhaps that the conservatives have been awaiting the ninth justice. Gorsuch is set to be sworn in Monday morning, and when the justices meet in their next private conference on Thursday morning, the new justice will be there.
If the court agrees to take up the issue, “I think Justice Gorsuch would be with us,” said Jeremy Tedesco, a lawyer for the Alliance Defending Freedom, the Arizona-based group that appealed on behalf of the Masterpiece Cakeshop and its owner, Jack Phillips.
Meanwhile, gun-rights advocates are challenging a California law that requires gun owners to show “good cause” before they are issued a permit to carry a concealed gun in public.
ounty sheriffs enforce this policy, and in San Diego, Los Angeles and other urban counties, permits are rarely granted. In San Diego, for example, officials have taken the position that simply fearing for one’s personal safety is not enough to demonstrate “good cause.”
Gun-rights lawyers have sued, contending this policy violates the 2nd Amendment and its implied “right to self-defense.” But last year, the U.S. 9th Circuit Court of Appeals upheld San Diego’s refusal to grant concealed carry permits and ruled “the 2nd Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.”
Meanwhile, on April 19, the court will hear arguments in a long pending religious-rights challenge to state bans on the funding of church schools. About three-fourths of states have constitutions that prohibit spending taxpayer money “directly or indirectly, in aid of any church, sect or denomination of religion,” as Missouri’s Constitution puts it.
Advocates of “school choice” say these laws stand in the way of public funding for religious schools. In January 2016, shortly before Justice Antonin Scalia died, the court voted to hear a Missouri case that challenged these funding bans as reflecting unconstitutional discrimination against religion.
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Source: Los Angeles Times, David G. Savage, April 9, 2017
Gay rights, labor, travel ban cases await Gorsuch
The addition of Neil Gorsuch to a divided U.S. Supreme Court could have a momentous impact on legal controversies over issues that include religion, gay rights, labor and President Trump’s attempts to limit immigration and entry to the United States.
That’s despite the fact that Gorsuch’s confirmation merely restores a conservative majority that had prevailed on the court for decades before the death of Justice Antonin Scalia in February 2016.
The Republican-controlled Senate overrode Democratic objections and approved the 49-year-old Gorsuch, Trump’s first Supreme Court nominee, by a 54-45 vote Friday in time for the court’s final hearings of the 2016-17 term. He is to be sworn in on Monday or Tuesday as the court’s 113th justice, White House spokesman Sean Spicer said.
One case the new justice will hear, on April 19, could determine the eligibility of religious institutions for state funding. A Missouri church is challenging the state’s refusal to include its preschool in a program that helps schools buy resurfacing equipment for their playgrounds.
As a federal appeals court judge since 2006, Gorsuch has endorsed expansive rights for religious adherents. In a 2013 case, for example, he supported the right of the religious owners of Hobby Lobby, a nationwide arts-and-crafts chain, to deny contraceptive coverage for female employees. The Supreme Court later upheld the ruling by Gorsuch’s court.
Lower courts have ruled against the Missouri church. But Michael McConnell, a Stanford law professor and a former appeals court colleague of Gorsuch, said Friday he expects Gorsuch and his court to agree with the church that “children cannot be denied equal access to government-funded benefits of an entirely secular nature for no reason other than the religious affiliation” of their school.
On the other hand, said Hadar Aviram, a law professor at UC Hastings in San Francisco, Gorsuch’s record and writings suggest that he won’t side with the court’s conservatives on everything.
“On criminal justice issues, he has an interesting record, similar to Scalia ... a libertarian, essentially, not on board with over-criminalization,” Aviram said. She predicted Gorsuch — like his predecessor — would vote to protect individuals from high-tech police searches of their homes and vehicles, but would side with the state on the death penalty and other sentencing issues.
While some past justices, like John Paul Stevens and Harry Blackmun, have surprised the Republican presidents who nominated them by moving to the left, “I suspect we’re not going to see a lot of surprises out of Justice Gorsuch,” Aviram said.
If his record on religious rights is any indication, Gorsuch could influence the court to grant hearings to business owners who say their spiritual values forbid them to design and sell products for same-sex marriages. The justices have previously denied review of a case by a New Mexico florist who made that claim, but could decide this month to take up an appeal by a Colorado baker who was sued for refusing to make a wedding cake for a gay couple.
While the court seems unlikely to reconsider its 2015 ruling that declared a constitutional right of same-sex couples to marry, another contentious gay-rights issue is headed for the docket: whether federal laws against employment discrimination protect gays and lesbians.
A federal appeals court in Chicago ruled Tuesday that the law’s ban on sex discrimination also covers sexual orientation. That ruling is not being appealed, but other appeals courts have reached the opposite conclusion, and the high court will be asked to resolve the conflict, perhaps in the new term that starts this fall.
By the fall, or perhaps earlier, the justices will also be confronted with Trump’s attempt to freeze U.S. admission of refugees and ban entry of anyone from six nations whose populations are almost entirely Muslim.
Appeals courts in San Francisco and Richmond, Va., are reviewing rulings by federal judges that said opponents of the president’s executive order were likely to prove the order was based on religious discrimination. Gorsuch has not ruled in any similar cases, but the dispute could require him to weigh the religious rights of Muslims against the conservative doctrine of deferring to executive decisions on national security.
Gorsuch is on record as opposing the Supreme Court’s doctrine since 1984 of deferring to administrative agencies in interpreting unclear laws. That stance could encourage Gorsuch, and his court, to take up a restaurant industry challenge to a ruling allowing waiters and waitresses to keep their tips, said James Burling, vice president for litigation at the business-backed Pacific Legal Foundation.
The federal appeals court in San Francisco upheld U.S. Labor Department rules last year that prohibited restaurants from requiring tipped employees to share their tips with supervisors and other non-tipped workers. The industry argued that the rules conflicted with federal law.
A more far-reaching labor case is also headed for the Supreme Court, where Gorsuch’s vote could be decisive.
Nonunion members are challenging, on free-speech grounds, laws in California and 22 other states that allow government employee unions to charge non-members fees for the cost of representing them at the bargaining table. The fees are an important source of funding for the unions, and ultimately for their Democratic supporters.
At a January 2016 hearing in a suit by nonunion teachers from California, Scalia made it clear that he intended to vote to prohibit the union fees. But he died before a ruling could be issued, and the remaining justices deadlocked 4-4, leaving intact a lower-court decision in the unions’ favor. The court will revisit the issue, however, in one or more similar cases now in lower courts.
Other issues awaiting the review of Gorsuch and his colleagues include:
• Guns: A challenge is pending to a California law that requires individuals to ask sheriff’s offices for permits to carry concealed handguns in public, permits that are almost always denied in urban counties. The California case, and cases from other states, could require the justices to decide how the right to possess firearms for self-defense at home, declared in a 2008 Scalia opinion, applies outside the home.
• Immigration: Trump’s attempt to strip federal funding from cities and states that refuse to cooperate with federal immigration agents is being challenged in a San Francisco federal court by San Francisco and Santa Clara counties, a case scheduled to be heard next Friday. The dispute could reach the high court by next year.
Source: SF Chronicle, Bob Egelko, April 7, 2017
A Polarized Supreme Court, Growing More So
WASHINGTON — Viewed one way, Judge Neil M. Gorsuch’s confirmation will not do much to change the dynamics of the Supreme Court. His appointment is a one-for-one swap, a conservative replacing another conservative.
But there is a more instructive way to think about what Judge Gorsuch’s impact will be after he is sworn in on Monday. It is to consider how the court would have been reshaped by President Barack Obama’s pick for the same seat, Judge Merrick B. Garland.
The answer shows just how polarized the Supreme Court has become. The titanic struggle over who would replace Justice Antonin Scalia was nothing if not partisan, and for good reason — the Supreme Court is just as divided as the rest of the nation.
Had Judge Garland replaced Justice Scalia, the court would have immediately shifted to the left. A majority of its members would have been Democratic appointees for the first time in almost 50 years. And, in a shift in recent years, partisan affiliation has become a very strong predictor of voting trends for all its members.
All four of the court’s current Republican appointees are more conservative than all four of the Democratic ones, and that familiar dynamic seems very likely to hold when Judge Gorsuch joins the court. But it has not always been thus. As recently as 2009, two Republican appointees to the court, Justices John Paul Stevens and David H. Souter, were members of the court’s liberal wing.
In losing the 2016 presidential election, Democrats may have given up the chance to change the balance of power on the Supreme Court for a generation. Judge Gorsuch is 49. If he serves as long as Justice Stevens, the last member of the court to retire, he will still be hearing cases in 2052. He would be 84, as old as Justice Ruth Bader Ginsburg is now.
Actuarial realities suggest that President Trump will have additional chances to move the court to the right. The court’s three oldest members are Justice Anthony M. Kennedy, 80, a moderate conservative who holds the decisive vote in many closely divided cases, and the court’s two senior liberals, Justice Stephen G. Breyer, 78, and Justice Ginsburg.
Were Mr. Trump to replace any of the three, a court that generally leans right would have a rock-solid conservative majority.
Were Mr. Trump to replace all three, the court’s remaining liberals — Justices Sonia Sotomayor, 62, and Elena Kagan, 56 — could find themselves writing lonely dissents for years to come.
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Source: The New York Times, Adam Liptak, April 9, 2017
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