Supreme Court

Neil Gorsuch Officially Confirmed to the U.S. Supreme Court

How the new justice will impact the future of SCOTUS.

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Neil Gorsuch has been officially confirmed to the U.S. Supreme Court by a final vote of 54-45 in the U.S. Senate. The 49-year-old jurist will now fill the vacancy created by the death of Justice Antonin Scalia last year.

Today's vote came as the culmination of a bitter partisan fight that has transformed the way in which the Senate will do business on Supreme Court nominations going forward. After the Democratic minority mounted a filibuster this week against Gorsuch, Senate Republicans triggered the so-called nuclear option, a fundamental change in Senate procedural rules that has effectively killed all future filibusters for all future SCOTUS nominees (Senate Democrats "nuked" the filibuster for lower court nominees in 2013). Exactly how this post-nuclear landscape will shape the next Supreme Court confirmation battle remains to be seen.

Neil Gorsuch will join a Court that is narrowly split along ideological lines. In the near term, his presence is unlikely to disturb that status quo. What that means is that the Court, at least for now, is likely to remain divided 5-4 in cases dealing with such hot-button issues as abortion rights, affirmative action, campaign finance, and gun control. Yes, Gorsuch will be the new kid on the block, but the justice to watch in those sorts of cases will still be perennial tie-breaker Anthony Kennedy.

But what about those areas of the law in which the Court does not divide along predictable conservative-liberal lines, such as criminal justice? For example, the late Justice Scalia was widely admired by criminal justice reformers for his opinions in Fourth Amendment cases. As Scalia himself once put it, "I have defended criminal defendants' rights—because they're there in the original Constitution—to a greater degree than most judges have." By contrast, liberal Justice Stephen Breyer typically reaches the opposite result in such cases and tends to rule in favor of prosecutors and police. Indeed, from a civil libertarian point of view, Justice Breyer is terrible on the Fourth Amendment. Meanwhile, another liberal justice, Sonia Sotomayor, is a Fourth Amendment champion who usually sided with Scalia. Where will Neil Gorsuch fit in? Given his record, I would not be surprised to see Gorsuch coming down on the Scalia-Sotomayor side of this divide, rather than on the Breyer side.

Gorsuch is especially well-poised to have a lasting impact on the Court when it comes to the issue of Chevron deference, a far-reaching legal doctrine that takes its name from the Court's 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council. According to Chevron deference, when the federal courts are confronted with an "ambiguous" statute, the default position is for federal judges to defer to the statutory interpretation favored by the executive branch agency charged with enforcing that statute. "Federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do," argued Justice John Paul Stevens in his Chevron majority opinion. "While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices." Chevron, in other words, instructs the courts to tip the scales in favor of the executive branch.

Chevron is a well-established Supreme Court precedent, but it does have its critics. Most notably, Justice Clarence Thomas has taken aim repeatedly at what he sees as the ruling's unconstitutional aggrandizement of executive branch agencies. Chevron "wrests from Courts the ultimate interpretative authority to 'say what the law is,'" Thomas complained in Michigan v. EPA, "and hands it over to the executive." That sort of judicial disarmament "raises serious separation of powers questions."

Thomas will now have an important ally on this front. Writing last year in the 10th Circuit case of Gutierrez-Brizuela v. Lynch, Neil Gorsuch lambasted Chevron deference as a "judge-made doctrine for the abdication of the judicial duty." According to Gorsuch, "under any conception of our separation of powers, I would have thought powerful and centralized authorities like today's administrative agencies would have warranted less deference from other branches, not more." It seems extremely likely that Thomas and Gorsuch will join forces on the bench in an effort to get Chevron overruled.

One of the biggest questions going forward will be Gorsuch's stance in the inevitable cases that will arise from President Donald Trump's expansive exercises of executive power in both foreign and domestic affairs. Will Justice Gorsuch act as a check on the president who picked him? We will find out soon enough.

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  1. …but the justice to watch in those sorts of cases will still be perennial tie-breaker Anthony Kennedy.

    They’re all shills for state power in one way or another.

  2. Jews to be rounded up, abortions are stopping mid-procedure.

  3. Senate Minority Whip Dick Durbin lied as usual in his pre-vote speech that it was unprecedented for the Senators to refuse to consider a lame duck President’s nomination for justice of the SCOTUS.

    Biden 1992
    Obama 2006
    Schumer 2007

    Thank you YouTube!

    1. Lame duck president in 2006 and 2007?

  4. Hoping for him to be the best justice ever, fully prepared to see him deep throating State Cock. This is where 55 years have got me.

    1. I’m only 2 and I feel the same way!

      /youtube comment

  5. They let FDR outlaw the private ownership of gold. The game was over at that point.

    1. I’d say it was over when Lincoln got to issue unconstitutional scrip during the war.

      -jcr

      1. Nah, it was over when Washington suppressed the Whiskey Rebellion.

  6. Every Dem better pray that RBG, Kennedy, and Breyer last another 4 years…

    1. They’re already on it. If I wasn’t eating, I’d find that link someone posted a while ago of lefties pledging to do “whatever it takes” to keep RBG propped up and alert.

    2. They have a lot to ask Satan for. To not lose more political seats in 2018. To not lose to Trump again in 2020. and that that all 4 liberal justices don’t croak in the next 4 years. That Trump does not set back every socialist agenda that is in place with the federal government.

      Kennedy needs to retire after this SCOTUS term. That way Trump can get another Libertarian-ish young buck on the court. The left’s head explosions would not have enough time to heal before the next one happened.

      1. Trump could be in the middle of a full-blown impeachment with approval ratings of 8% and I still see no plausible map where the Dems get a Senate majority in 2018. They’d have to successfully defend ten states Trump won and steal Nevada, Arizona, and frickin Texas from Republicans.

    3. Dems have stumbled upon the Febreze loophole:

      http://www.clickhole.com/artic…..supre-5456

  7. Question tangentially related to this article: What are some opinions about the filibuster, specifically legislative filibusters? Personally, I’m ready for it to go away and allow elected officials to pass legislation. It’d be a big break from tradition though, with some seen and potentially unseen pitfalls.

    1. I say any time the Republican are going to lose control of the Senate in the future, add the filibuster rule back and make a 100 Senator vote required to remove the filibuster.

      1. How bipartisan of you 🙂

      2. And make it clear that you are doing this BFYTW followed by now you have something real to whine about. Schumer talking about this brings out my nasty side.

    2. We should keep in mind that the filibuster came about as an accident when a more rule was changed that failed to provide for a way to end debate, and was never intended to be a major aspect of the Senate either in the Constitution or the early Congresses. The first filibuster didn’t occur until 1837. Its become a feature by tradition, but its still a bug.

      I can see its usefulness in legislative matters. On one hand theres the thought that anything that slows the legislature down is a good thing; requiring a supermajority to pass laws acts as a safeguard against the tyranny of the majority. But it also seems a bit superfluous in that legislation already requires unanimous approval by all legislative houses as well as the executive, so the filibuster doesn’t seem like it would play that big a role when there are already a fair bit of checks and balances in play.

      I’ve always considered it a bit absurd in the context of approving appointments. “Advice and consent” does not by any means imply “supermajority.” And from a practical standpoint, it seems that the nominees who shared more libertarian views were far more likely to face a filibuster then those who favor a more authoritative government, and they seemed to never face any opposition. So in that sense it seems like a tool that would normally be considered one that restricts government overreach has been coopted into one that aids it, so I’m quite happy to see the filibuster gone here.

    3. The filibuster is a stabilizing force guaranteeing a level inaction and gridlock; its purpose is basically to prevent the ruling party from ‘getting too much done.’

      Obviously if you think going forward people with your views will be dominant in congress you might support getting rid of it; if you’re less confident of that or expect future congresses will want to do things you think are harmful, then you like the filibuster because doing nothing is better than doing bad things. That’s my summary of things at least.

      1. In this instance, I’m thinking about the filibuster more philosophically than strategically. My beef with the filibuster at this point in time is the way it gets used in a hyperpartisan environment. Even 25 years ago, the filibuster was rarely used. Now though, it gets used essentially as a reaction to anything coming from anyone from the other party. The result is a highly dysfunctional legislator and an executive branch that increasingly relies on orders rather than drafted law.

        If partisanship is doing to remain the game to play (and Game Theory suggests it is), I think the legislative rules must change to reflect that reality. And that means that when a single party has control of all three branches of government, they get to make laws as such.

        1. You paint yourself as a calm, well educated liberal, and yet you remain a partisan too ignorant to recognize your partisanship:
          “My beef with the filibuster at this point in time is the way it gets used in a hyperpartisan environment. Even 25 years ago, the filibuster was rarely used.”

          “Democratic Senator Strom Thurmond of South Carolina, an ardent segregationist, sustained the longest one-person filibuster in history in an attempt to keep the bill from becoming law. His one-man filibuster lasted 24 hours and 18 minutes; he began with readings of every state’s election laws in alphabetical order. Thurmond later read from the Declaration of Independence, the Bill of Rights, and George Washington’s Farewell Address. His speech set the record for a Senate filibuster.[3] The bill passed the House with a vote of 285 to 126 (Republicans 167?19 for, Democrats 118?107 for)[4] and the Senate 72 to 18 (Republicans 43?0 for, Democrats 29?18 for).[5] President Eisenhower signed it on September 9, 1957.”
          Wiki it, pal.

          1. I said the filibuster is *rarely* used, and you responded with a single instance of it being used in 1957. Those two things are far from mutual exclusive.

    4. I’m in favor of retaining the filibuster. I think throwing the odd speed bump in the way of the legislative process can be a good thing. Our system was never meant to run on brute-force majoritarianism. The whole structure was designed precisely to slow down rushed reactions, allow tempers to cool a bit, and encourage only legislation which could find a reasonably consensus. I’d be the last to claim that this has always worked, but I don’t think letting a very narrow majority completely dominate the process is likely to produce better results.

      Or, on my more cynical days, I just figure that since the vast majority of what Congress does is bad, anything that keeps them from doing more is good.

  8. Awesome news. He was definitely the best could expect with either a President Trump or a President Clinton, and one of the few reasons to support Trump at all, so good deal. Hoping he tilts more libertarian than conservative but only time will tell.

  9. “Trump’s expansive exercises of executive power”

    CURIOUS. I’M NEW TO REASON.com

    Where was Reason on the issue of “expansive exercises of executive power” during the 8 years of Obama?

    In other words, is Reason just another Lib ragsheet, albeit one that is gussied up a bit.

    1. There is a whole website right here full of what Reason had to say about the Obama years. I recommend that you form your own opinion on the subject.

      I’m curious why you started off in all caps, and then stopped.

      1. There’s even a nifty tag with those very words: https://reason.com/tags/executive-power

        CURIOUSER AND CURIOUser!

    2. If I say, “yes”, will you promise to stop reading?

    3. is Reason just another Lib ragsheet

      Are you just another brain-dead bootlicker, albeit one with an “R” instead of a “D” tattooed on your ass?

      -jcr

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  14. Whoopee, now we’re basically back to the court that said Obamacare’s mandate was a tax.

  15. The real test is whether the next nominee will be an originalist or a closet progessive.

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