What you should know about Supreme Court nominee Neil Gorsuch
Religion & Liberty Online

What you should know about Supreme Court nominee Neil Gorsuch

Today the U.S. Senate confirmed the nomination of Judge Neil Gorsuch to replace the late Justice Antonin Scalia. President Trump will swear in Judge Gorsuch early next week.

Here is what you should know about the next associate justice of the Supreme Court of the United States.

Neil Gorsuch

Age: 49

Birthplace: Denver, Colorado

Education: B.A. from Columbia University; J.D. from Harvard Law School; PhD in Law from University College at Oxford University.

Current judgeship: U.S. Court of Appeals for the Tenth Circuit (appointed by George W. Bush).

Previous roles: In the early 1990s, Judge Gorsuch clerked for U.S. Supreme Court Justices Byron White and Anthony Kennedy. He served in private practice at the Washington, D.C. law firm of Kellogg, Huber, Hansen, Todd, Evans & Figel, and served as principal deputy to the associate attorney general and acting associate attorney general, U.S. Department of Justice.

Religious denomination: Episcopalian

Family: Judge Gorsuch is married and has two daughters. His mother served as President Reagan’s head of the Environmental Protection Agency.

Judicial philosophy: Judge Gorsuch is considered a proponent of originalism, a manner of interpreting the Constitution that begins with the text and attempts to give that text the meaning it had when it was adopted, and textualism, a method of statutory interpretation that relies on the plain text of a statute to determine its meaning.

Positions and rulings

Religious Liberty: Gorsuch was on the Tenth Circuit when they heard the religious liberty case, Hobby Lobby Stores vs. Sebelius. The court ruled federal law prohibited the requirement from applying to closely held corporations, a position upheld by the Supreme Court. In his opinion Gorsuch wrote that the Religious Freedom Restoration Act applied to the owners of Hobby Lobby: “The Act doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

The Tenth Circuit also heard the case of Little Sisters of the Poor Home for the Aged vs. Burwell. In his dissent, Gorsuch wrote:

The opinion of the panel majority is clearly and gravely wrong—on an issue that has little to do with contraception and a great deal to do with religious liberty. When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?

This is a dangerous approach to religious liberty. Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative? A Christian could be required to work on December 25 because, according to a court, his core belief is that he should not work on the anniversary of the birth of Jesus but a history of the calendar and other sources show that Jesus was actually born in March; a December 25 work requirement therefore does not substantially burden his core belief. Or a Jewish prisoner could be provided only non-kosher food because the real purpose of biblical dietary laws is health, so as long as the pork is well-cooked, etc., the prisoner’s religious beliefs are not substantially burdened. The Supreme Court has refused to examine the reasonableness of a sincere religious belief—in particular, the reasonableness of where the believer draws the line between sinful and acceptable—at least since Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 715 (1981), and it emphatically reaffirmed that position in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2778 (2014).

Worker protections: While on the Tenth Circuit, Gorsuch heard the case, TransAm Trucking Inc. v. Administrative Review Board. The majority determined a trucker had been wrongfully fired after he unhitched his trailer and drove away when the truck’s brakes froze. In his dissent, Gorsuch said the company had given the driver the legal option to stay with his trailer and wait for help, which he declined, instead operating the truck in a way not permitted by the company.

Administrative law: Gorsuch was one of the judges on the Tenth Circuit who wrote in a 2016 opinion that the Chevron doctrine allowed “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Gorsuch called Chevron a “Goliath of modern administrative law,” and argued it may be time to face “the behemoth.” He suggested the judiciary rather than the executive branch should have the last word on the meaning of the law. However, in his Senate confirmation hearing he responded to Sen. Klobuchar’s claim about overturning Chevron by saying, “I would try to come at it with as open a mind as a man could muster.” (For more on the Chevron doctrine, see this explainer.)

Joe Carter

Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).