Neil Gorsuch the new Supreme?

On Tuesday night, President Donald Trump nominated Neil Gorsuch from the 10th Circuit Court of Appeals as his nominee to fill Antonin Scalia's vacant seat on the Supreme Court. This was hailed by conservatives as courageous, decried by liberals as dangerous, with Nancy Pelosi going so far as to call the choice "hostile." And most of the Senate Democrats have resolved to hold up the nomination for as long as they possibly can. Not a surprise, considering the abdication of duty exhibited by Senate Republicans when President Obama nominated Merrick Garland. Scalia's seat has been vacant for almost a year now, and cases have been kicked back to the lower courts due to 4-4 draws in the current make up. Mitch McConnell basked in the glow of extreme pride that he successfully held up the process long enough to get a Republican president in office. Not a joke, McConnell himself said at a campaign rally in Fancy Farm, Kentucky, "One of my proudest moments is when I looked at Barack Obama in the eye and I said, 'Mr. President, you will not fill this Supreme Court vacancy.'" And the crowd went wild.

Now that they have accomplished this, Gorsuch is supposed to be their heir apparent to Scalia. That may or may not be the case, but there are already cries of foul from the left because of Gorsuch's professions of concern about the judicial system being leaned on too much for decisions that should remain with the legislature or voters, yet his decisions show him being a staunch obstacle when liberal issues come before him, versus a red carpet when conservative issues come before him. He has a history of supporting conservative executives breaking the law (Reagan's Iran-Contra scandal) and dissenting on the rights of protesters (his entire college career, opinions on Aparteid protests). But a big hint into how he thinks and operates has been brought up in a little known case in Utah, where the Planned Parenthood Association of Utah (PPAU) sued Utah Governor Gary Herbert, a Republican, for directing his Executive Director of the Utah Department of Health (UDOH), Joseph Miner, to "stop acting as an intermediary for so-called “pass-through” federal funds that PPAU uses to carry out certain programs in the State of Utah." Essentially, Planned Parenthood in Utah receives their federal funds via distribution through UDOH. "Pass-through" funds are funds that have been granted to an entity, but the state has no infrastructure to provide the distribution of the money. So it utilizes an existing entity in that state - in this case, UDOH - to distribute the funds for them. The Governor basically told Miner to stop distributing the funds, supposedly in response to the long-since debunked undercover videos purporting Planned Parenthood to be a fetal tissue mill.

So here's what happened:

• The district court initially granted the Temporary Restraining Order (TRO), but ultimately withdrew it and denied PPAU the preliminary injunction it was seeking.
• PPAU filed an interlocutory appeal. "Interlocutory" is a legal word for "interim," meaning that the appeal was filed while claims in the original case had still yet to be resolved.
• This appeal goes to the 10th Circuit Court of Appeals. The three-judge panel randomly selected to hear the case was Circuit Judges Mary Beck Briscoe and Robert Bacharach, and Senior Circuit Judge David Ebel. The three judge panel is normal procedure.
• The panel "granted a stay in favor of PPAU to prevent the cessation of funding during the pendency of this appeal, and we also expedited the briefing and oral argument schedule... we reverse the decision of the district court and remand with instructions to grant PPAU’s motion for preliminary injunction. In other words, they overturned the district court judge's decision so Planned Parenthood could continue to receive funds.
• "Subsequent to that issuance, a poll was called, sua sponte, to consider en banc rehearing." And here's where the problem comes in. "Sua Sponte" means an act of authority taken without formal prompting from another party. "En Banc" means that the rehearing is held in front of the entire court bench of available active Circuit judges (12 total if all are available), instead of a randomly selected three-judge panel.
• The reason this is a problem is because, according to Title 7, Rule 35, of the Federal Rules of Appellate Procedure, only a party to the case can request an en banc rehearing. They have to petition the Circuit Court of Appeals court for it. "Sua Sponte" means that a judge on the 10th Circuit Court of Appeals requested the en banc rehearing without either party petitioning for it. That is almost unheard of and, some argue, a violation of the rules of procedure.
• A majority vote of the entire bench is required for an en banc rehearing to be granted. Only four judges voted yes: Chief Judge Tim Tymkovich, Circuit Judges Harris Hartz, Jerome Holmes, and - wait for it - Neil Gorsuch. The en banc rehearing was denied, and who do you suppose wrote the dissenting opinion? Neil Gorsuch.
• Under normal rules and procedure, an en banc hearing would likely have been voted down, even if it had been petitioned by one of the parties to the case. That is because the decision by the panel was predicated on a "matter of fact," rather than a "matter of law." That's an important distinction, because a "matter of fact" only affects that specific case. A "matter of law" affects cases in the future, who would look to the current case for "precedent." So because the decision in the case would not extend beyond that case itself, an en banc rehearing would almost certainly have been voted down anyway. So why would a circuit judge request one without a petition to do so? Some think the answer to that lies in the fact that Gorsuch wrote the dissent - implying a strong likelihood that he is the judge who requested the en banc. Since there was no legal reason to request it, the reason would likely be ideological, meaning the judge who requested it was likely anti-abortion, and wanted to seize the opportunity to go after Planned Parenthood, even though the three-judge panel ruled the other way. The en banc procedure would be an opportunity to overrule his/her own colleagues' decision.

So, is Neil Gorsuch anti-abortion? No one knows for sure, because there isn't any abortion case law involving him, and he isn't known to have written any opinions on abortion specifically. But he has ruled against assisted suicide, and he wrote a concurring opinion in the Hobby Lobby case, which granted employers the right to deny birth control as part of company-sponsored health coverage:

"All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.

As they understand it, ordering their companies to provide insurance coverage for drugs or devices whose use is inconsistent with their faith itself violates their faith, representing a degree of complicity their religion disallows… No doubt, the Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive. But no one disputes that they are sincerely held religious beliefs."

In this case, birth control is "wrongdoing," and companies have the right to deny it as a part of health coverage. Moreover, he thought the ruling didn't go far enough. He believed that individual owners, not just corporations, had the right to make that decision. While he did say that the Green's religious convictions are contestable, and acknowledged that they could be viewed as offensive, he never really gives away what he himself believes, other than in the religious freedom of employers to invade the private lives of their employees and dictate behavior. That is a big enough problem for anyone in states that are pushing religious freedom laws as a legal means of discriminating against the LGBTQ community. But if he is anti-abortion, and was willing to bend or, possibly, break rules to affect an already decided appeal, that could pose big potential problems with women's rights. If he is part of a court that decides that religious freedom laws are acceptable as a means of imparting an individual's beliefs on everyone (Hobby Lobby shows he does believe that to some degree), how does a religious freedom law play into Roe v. Wade, if it comes before The Supremes again? And would he be willing to bend/break rules as a Supreme to get what he wants? John Roberts already did that in the Obamacare case, when he invented a tax that didn't exist, in order to deem said tax constitutional. Can we really afford to have Supremes who don't believe in the rule of law or, worse, believe that they make the laws?

We already have a problem with excessive partisanship on a court that is supposed to be, by definition, neutral - take every case individually, on its merits, and determine constitutionality. That they think their personal beliefs endow them the ability and authority to change or create a law, or it's interpretation within a constitution that was created, and influenced, by framers who accepted religion but maintained that the government was not founded on religion, and angled to separate religion from the government, leaves a sour taste on the prospects of the future of American jurisprudence. The United States is, officially, no religion. And the court, from a legal standpoint, is supposed to be as well. If you can't follow the law, or the constitution, and keep your religion out of it, then you don't belong in any job that demands exactly that.