The moment my colleagues and I have been dreading has finally arrived. Tonight, President Trump announced the appointment of Judge Neil Gorsuch of the 10th Circuit Court of Appeals to fill the seat of the Supreme Court opened by the death of Justice Scalia. But Judge Gorsuch must still be confirmed by the Senate to become Justice Gorsuch, and per Supreme Court appointment rules the Democrats could block his appointment by filibuster. But this post is not about whether the Republicans “deserve it” after the treatment of Judge Garland or some such punditry: instead I want to focus on what the legal consequences of a Justice Gorsuch would be as distilled from court dynamics and his record. After all, at 49 years old, Judge Gorsuch has the potential to be on the Court for decades upon decades.
1. The Untouchables – Upon the appointment, I began to dig into Judge Gorsuch’s record to try to discern why it was that President Trump selected him. The mainstream media tends to get this wrong (as they did recently with the attempted appointment of Judge Garland), throwing out the “boring” stuff like standing doctrine and spending power and narrowing in on the more incendiary issues like abortion and affirmative action. A judge’s character cannot be fully ascertained by looking at their sensational cases: the totality of the holdings can be just as revealing.
And what quickly became apparent to me was that Judge Gorsuch has a pet issue: sovereign immunity. Sovereign immunity is law of shaky precedent, being sourced in everything from feudal rights of kings to fundamental requirements of governance depending on who you ask. And yet despite its mysterious origins, it is strongly enforced, especially in the last several years.
Sovereign immunity is the principle that, in general, the government should not be liable in tort to its citizens. The argument is that suing the government to get the change we want is not proper, that such changes are better suited to the legislature, and that the government cannot operate properly if it can be challenged like an ordinary citizen. While there are some exceptions, most arms of the state are entitled to some kind of sovereign immunity, from the Attorney General of the United States to the Sheriff of Yorktown-Poquoson.
But they also have a more sinister purpose, which is to shield the state from accountability for breaking or failing to enforce its own laws. To prevent this the law provides some means of suing the government that are not subject sovereign immunity, especially for Constitutional claims through what are called 1983 actions.
Consider the case of Robert Vigil. Mr. Vigil was New Mexico’s state treasurer and was worried about his next election. So worried that he was prepared to bribe his opponent to stop him from running. But being the crafty guy he was, Mr. Vigil decided to put in two layers of separation: first that the bribe would be in the form of a comfy job, and secondly that the job would be given to his opponent’s wife Samantha Sais. But Mr. Vigil did not want to take on this expense himself, so instead during the next contractor bid he made it a mandatory condition of the bid that the Contractor hire Ms. Sais at whatever terms she wanted. A contractor called SECSYS initially agreed to this arrangement but quickly found out that Ms. Sais wanted 40% of the net profits of the contract, which they could not agree to. So instead they sued Mr. Vigil for a 1983 action under the Equal Protection Clause of the Fourteenth Amendment.
Judge Gorsuch’s opinion in the case is patronizingly flabbergasted that SECSYS would take this route. “SECSYS seeks damages from Mr. Vigil…not for violating state contracting law, not for violating state common law, not for violating any federal statute. Instead,” Judge Gorsuch writes, “SECSYS says…they violated the company’s Fourteenth Amendment right to equal protection of the laws.” Despite the Judge’s feigned shock, we can be certain he knew exactly why they pursued this avenue: because had they used state contracting law, common law, or federal statute, they would have been blocked by sovereign immunity. Needless to say, Judge Gorsuch ruled in favor of this clearly extortionary scheme, as he ruled in favor of immunity in the following cases:
– when a school retaliated against an employee speaking out against the schoolboard for not complying with federal regulations in Casey v. W. Las Vegas Indep. Sch. Dist.
– when the Board of Regents of Oklahoma discriminated against a woman because of her disability, despite state law that prohibits such discrimination, in Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla.
– when a Sheriff requested private medical records from a Veteran’s Administration hospital because it was “not clear” whether that was a constitutional violation in Kerns v. Bader.
Given the Trump administration’s fascist inclinations, this propensity for defending governmental immunity for being held accountable for plainly unlawful conduct is disturbing to say the least.
2. Freedom Of Theocracy
Hobby Lobby has become a notorious symbol of the Supreme Court’s allowance of “religious liberty” to undermine the reproductive freedom of people in the United States. Before the case reached the Supreme Court though, it was in the 10th Circuit Court of Appeals. Judge Gorsuch, normally a very methodical and restrained writer, took a more fervent approach in his concurring opinion for Hobby Lobby Stores, Inc. v. Sebelius. He dispensed of actually enumerating details to support his claims that the Affordable Care Act mandating insurance coverage of reproductive healthcare violated religious freedom. I really cannot do his words justice, so I will let him speak for himself:
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…there can be no colorable question that the Greens [owners of Hobby Lobby] are “persons” entitled to RFRA’s protections. Neither can there be any colorable question that the Greens face a “substantial burden” on their “exercise of religion.”…As we have already seen, the Greens face precisely that — a choice between abiding their religion or saving their business.
Judge Gorsuch also let his religious freak flag fly in his dissent to Am. Atheists, Inc. v. Duncan, a case involving memorials along the highways in Utah to dead state troopers. Judge Gorsuch dissented against the majority holding that found the memorials violated the Establishment Clause. While it seems reasonable to have memorials to state troopers, the actual appearance of the memorials quickly reveal the problem:
3. Ticket Or Prison
Imagine this scenario – you are at a state fair and are a person of color. A couple of police officers walk up to you. You simply ask if there is a problem, and the police officers tell you that they don’t like your tone. You did nothing wrong, so you verbally defend yourself, and the argument becomes so heated that one of the officers grabs you and drags you to the police station. A police officer hands you a confession to sign, claiming that you said “Why are the fucking police here?,” and having you plead guilty to a misdemeanor citation. You object, telling the officer that is not what you said. The officer simply tells you that you either sign this citation or go to jail.
A pretty coercive situation to be in, and that’s exactly the situation that Jeramy Martinez was in. Judge Gorsuch decided that it was legal. He wrote that Martinez was not being forced to do anything because he had a “choice.” Then, in an act of judicial magic, Judge Gorsuch says that the situation is similar to the choice given when you are issued a traffic ticket.
Now I have only been issued two traffic tickets, one for a car and the other for a bike, and my white-self does not remember being told to sign a confession or go to jail. Instead, the citation is given out very matter-of-factly, and most importantly, you are given an opportunity to challenge it in court. And that is not even touching on the basic issue that traffic citation and citation for a misdemeanor are vastly different consequences. While some jobs require reporting misdemeanors, almost none require the reporting of traffic violations. Further the misdemeanor was for resisting arrest, which certainly is a bit harder to explain to potential employers than a traffic citation.
And what is most terrifying about this case is seeing a similar logic with the Trump Administration. The protesters at his inauguration received unprecedented felony riot charges for refusing to cooperate with law enforcement. Being able to coerce those same protesters into taking on misdemeanors as if they were mere traffic violations will almost certainly be part of the President’s plan to shut down the dissent against his administration.
4. Squeezing Water From A Stone
This next case involves bankruptcy, but I promise I’ll hold off on giving you a full bankruptcy primer. For our purposes, we only need to talk about two kinds of consumer bankruptcy: Chapter 7 and 13. Also disclaimer that this is very basic and should not be taken as advice for any specific bankruptcy.
Chapter 7 is liquidation – a debtor’s assets are sold off, used to repay as much of the debt as possible, and then the debtor is released from the remaining debt. Chapter 13 is a government-backed payment plan: a debtor’s income is automatically deducted at certain amounts to pay off their debts in full, in exchange for protection from the creditors foreclosing on any collateral. These two chapters were always distinct, but became ever more so with the Bankruptcy Abuse Prevention and Consumer Protection Act in 2005, where Chapter 7 was restricted to a much smaller class of debtors. But bankruptcy is notorious for being applied differently in different jurisdictions or “local bankruptcy cultures,” and the 10th Circuit Court of Appeals is no exception.
The Woolseys were the typical victims of the mortgage crisis – they had taken a second mortgage on their home, but that eventually became a problem rather than a solution as the money they owed became worth more than the value of the house (which generally serves as collateral in mortgages). The second mortgage is subordinate to the first mortgage, so Citibank (the creditor) had a claim that the Woolseys had no way of paying. For exactly these kind of situations, Chapter 13 bankruptcy allows debtors to strip off certain leans that failed the tests of being allowed and secured. At issue in Woolsey v. Citibank, N.A. was whether or not the secured element applied to Chapter 7 and Chapter 13 in the same way. The Woolseys argued that the Supreme Court had made a narrow ruling in regards to Chapter 7, whereas Chapter 13 should be evaluated by the plain letter of the law – that without proof of value, the lien would be voided.
While Judge Gorsuch writes that “their argument isn’t entirely without appeal,” he ruled against them and for Citibank. His reasoning was that there is a statutory interpretation principle that favors a single use of a word (in this case “secured”) only having one meaning. But this argument is ridiculous for one simple reason: the Woolseys are not trying to give “secured” two meanings. “Secured” still has the same principle effects, it just takes different paths to get to it in Chapter 7 versus Chapter 13. For example, to use an argument that Judge Gorsuch would probably hate, current law allows for marriage to be achieved by the pairing of either a heterosexual couple or a homosexual couple. No one, not even those against gay marriage, would argue that gay couples must have a man and woman in order for a man and a man to get married.
Was there any other reason for Judge Gorsuch’s opinion? Yes – he wanted the Woolseys to make a precedent he wanted, and their failure to play ball resulted in him denying the removal. Judge Gorsuch was pushing the Woolseys to a different protection, the limited right of Chapter 13 debtors to alter the rights of creditors. But Judge Gorsuch was not simply being vindictive – had the Woolseys gone down his path, it may not have resulted in the full relief that they required. While the rights of creditors may be altered, the material provisions of a contract cannot be, and further Citibank could probably succeed on a claim that they were being discriminated against.
Even if they had succeed in this route, it would do nothing to provide consumers with additional tools: it leaves the issue up to a battle between creditors (usually powerful banks) and consumers (usually desperate) It is not a fair bargaining situation. But free market zealots like Judge Gorsuch would rather have it that way and deny what few protections consumers have, to keep them in debt and repayment for years because of a recession that they did not cause.
5. The End Of Kennedy’s Court – Justice Kennedy is a sentimental sycophant who represents everything wrong with a politics of “centrism.” And when I say centrism you should read right wing, since that is what constitutes the center in US bourgeois politics. Justice Kennedy won’t overturn Roe v. Wade, but he’ll restrict access to reproductive care; he is fine with gay people, as long as they assimilate to heteronormative ideas of relationships; and he doesn’t want to end racial civil rights, just most of them. That being said, he is still the Court’s center. A far-right judge like Gorsuch does not just mean a new far-right voice and vote on the Court. It means more opinions being written by Alito and Roberts too as Kennedy’s “tiebreaker” becomes less crucial. And that will not take long since Justice Ginsburg could die any day now.
And that’s the biggest reason for the Democrats to put aside their normal cowardice and dig in with firm, united opposition. This isn’t for the next four years – this is for the foreseeable future and to set the tone for the additional appointments that are almost certain to follow. I have seen some talk about how fascism takes root when law enforcement begin to make their own rules rather than following the courts. I disagree: that alone can just be insubordination. Fascism takes root when the executive make their own rules and the courts adopt them. And I have no hope in the Supreme Court’s band of reactionary men upholding any part of the Constitution that is inconvenient for their vision of a white supremacist patriarchal Christian world.
And no, I do not think the bourgeois republicanism we had is worth saving. I doubt we could save it at this point even if we tried. But we need as much time to build our alternative organization and strength as possible. Even if the Democrats do decide to fight, even if they manage to block Gorsuch, Trump would likely appoint someone slightly less fascist and the Democrats will cave. But the Left should not cave with them. As far as I’m concerned, I’m fighting to keep that seat empty until Donald Trump is removed from power. And I hope you’ll join me in that fight.