As expected, Neil Gorsuch took the two oaths required of all incoming Judges and Justices to become the 113th Justice on the Supreme Court:
WASHINGTON — Neil M. Gorsuch was sworn in on Monday as the 113th justice of the Supreme Court, placing a devoted conservative in the seat once occupied by Justice Antonin Scalia and handing President Trump a victory in his push to shape the court for decades to come.
Justice Gorsuch, 49, took the oath in the White House Rose Garden with Mr. Trump looking on. It was the fulfillment of a vital campaign promise made by Mr. Trump — one that allayed the reservations of many Republican Party stalwarts, who were otherwise repelled by his candidacy — to make the appointment of a strict conservative to the Supreme Court a top priority.
Justice Anthony M. Kennedy, 80, often a swing vote who holds the balance of power on the court, presided, a reminder that Justice Gorsuch’s ascendance may not be this president’s final chance to influence the direction of the high court.
“Justice Gorsuch, you are now entrusted with the sacred duty of defending our Constitution,” Mr. Trump said. “Our country is counting on you to be wise, impartial and fair, to serve under our laws not over them, and to safeguard the right of the people to govern their own affairs.”
Mr. Trump called the occasion “momentous” and “historic,” noting that his power to appoint is among a president’s most important.
“And I got it done in the first 100 days,” Mr. Trump added. “You think that’s easy?”
The Rose Garden ceremony, on a sun-soaked spring day, recalled one just over a year ago in which President Barack Obama announced his selection of Judge Merrick B. Garland to succeed Justice Scalia. Senate Republicans quickly declared, however, that they would not consider Judge Garland’s nomination, saying the choice of the next justice should belong to the next president.
The day started early for Justice Gorsuch, who was first sworn in during a private ceremony at the Court by Chief Justice Roberts. At this ceremony, Gorsuch took the “Constitutional Oath” required of all Federal officers and appointees in a ceremony that was attended by the current members of the Court, Gorsuch’s family, and the widow and eldest son of the late Justice Scalia. The Court later released photographs of that event:
Supreme Court releases photos of Justice Neil Gorsuch signing the Constitutional Oath during swearing-in ceremony. https://t.co/C4GsNwNvx1 pic.twitter.com/fLiy1TWXcq
— ABC News (@ABC) April 10, 2017
After that ceremony, the same entourage of people made their way to the White House, where Gorsuch took the oath required of members of the Federal Judiciary since Congress passed the Judiciary Act of 1789, the first statute that organized the judiciary of the new nation created by the Constitution. That oath was administered by Associate Justice Kennedy, whom Gorsuch had clerked for 24 years ago. Here’s video of that oath:
WATCH: Justice Neil Gorsuch takes the second of two oaths to join the Supreme Court. https://t.co/UfwQAc99zK pic.twitter.com/lIY61ge9ZB
— Fox News (@FoxNews) April 10, 2017
Now that he’s been sworn-in Gorsuch can officially begin moving into his new office in the Court and bringing on board whatever staff and clerks he may be bringing with him from the Tenth Circuit if any. It was reported over the weekend, though, that Gorsuch has already been given access to briefs he is going to need to read to be up to date on the cases that the Court will be considering during the remainder of the term. These include not just the dozen or so cases that will be argued during the two weeks of oral argument that begin next Monday, but also a whole host of petitions for review currently pending before the Court that could make for some interesting developments in the term that will begin in October:
Within the week, Gorsuch will join his new colleagues in considering whether to hear two lower-court defeats being appealed by gun rights organizations. A case about whether business owners may refuse to offer their wedding services to same-sex couples awaits resolution. Soon, the justices will take up North Carolina’s request that they overturn a decision tossing out as unconstitutional its tightened voting restrictions.
And heading toward the court is Trump’s revamped travel ban on refugees and certain immigrants, a case that Senate Democrats said will test Gorsuch’s independence from the man who chose him for the high court.
“One notable difference between this nomination and those past is that Trump had clear, stated litmus tests for his nominee,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center, which opposed Gorsuch’s confirmation. “Gorsuch will have the opportunity almost immediately to demonstrate just how closely he fits within two of President Trump’s stated litmus tests for his high-court nominee — guns and religion.”
It seems likely that Gorsuch holds the key to a long-delayed case that is the court’s most important of the term regarding separation of church and state. A church-affiliated school in Missouri is challenging that state’s refusal to let it participate in a grant program that provides playground safety materials.
Trinity Lutheran Church says religious institutions are unfairly excluded from such state programs. The state points to a clause in its constitution that says “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.”
The court accepted the case nearly 15 months ago, when Scalia was still alive. But it delayed scheduling the case for oral argument until now. That might be an indication that the court has been divided on the issue from the beginning and needs a ninth vote to break the tie.
Gorsuch was an outspoken supporter of religious objectors in two cases involving the Affordable Care Act. In Hobby Lobby v. Sebelius and Little Sisters of the Poor v. Burwell, Gorsuch wrote that a requirement that employers provide contraceptive coverage for their employees could make the religious complicit in what they consider a sin.
The court is also considering a petition from a Denver baker who was found to have unlawfully discriminated against a gay couple by refusing to sell them a wedding cake.
Lower courts ruled that Jack Phillips, the owner of Masterpiece Cakeshop, violated Colorado’s public accommodations law, which prohibits refusing service to customers based on factors such as race, sex, marital status or sexual orientation.
The Supreme Court has listed the case as “under consideration” for weeks, without announcing whether it is accepting the case or turning it down.
That has led to speculation that the justices have decided not to take the case and that one of the conservative justices is writing a dissent against that decision. But it could also be that three justices want to take the case and are hoping Gorsuch will provide the fourth vote required to accept a case.
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Two gun issues await at Gorsuch’s first private conference with his new colleagues Thursday, when the court meets to decide whether to accept a long list of cases for the term that begins next fall.
The most important is a petition from gun rights activists asking the court to find for the first time that the Second Amendment right to keep a gun for self-defense extends to carrying firearms outside the home.
In cases from California, the full U.S. Court of Appeals for the 9th Circuit ruled that it did not. “Any prohibition or restriction a state may choose to impose on concealed carry — including a requirement of ‘good cause,’ however defined — is necessarily allowed by the [Second] Amendment,” it said.
A strongly worded dissent said “any fair reading” of the Supreme Court’s 2008 decision finding a constitutional right to gun ownership for self-defense “compels the conclusion that the right to keep and bear arms extends beyond one’s front door.”
A second case involves whether those convicted of certain crimes can be barred indefinitely from possessing firearms.
On a different subject, the court must soon decide what to do about North Carolina’s request that the court review a decision striking down its voting law. The U.S. Court of Appeals for the 4th Circuit said the law was unconstitutional because it was drawn to “target African Americans with almost surgical precision.”
The case already has divided the Supreme Court. In August, the justices split 4 to 4 on whether the decision should be stayed so that the law would be in effect for the November elections. The lack of a fifth vote meant the restrictions did not govern voting in last fall’s election.
Gorsuch may have an impact on cases that already have come before the court. Normally when the court is deadlocked, it issues a one-paragraph statement that affirms the decision of the lower court, without setting a national precedent.
This term, however, there may be cases that the eight justices have already considered in which they reached an impasse but decided to hold back any announcement, awaiting Gorsuch’s confirmation. In that scenario, the court would order new oral arguments to allow Gorsuch to join the deliberations.
Depending on where the Justices currently stand on many of these cases, Gorsuch could provide a crucial fourth vote in favor of taking particular cases for review. In some of the examples cited above, such as the gun control and religious liberty cases, that could be the difference between a case getting and not getting a review. We could get an indication of that early next week when the Court announces the next list of cases it has accepted for appeal during the upcoming term. At that time, the Court may also announce which cases it has already heard oral argument, if any, it will set for re-argument now that it has a full complement of Justices again for the first time since Justice Scalia died in February of last year. In reality, of course, Gorsuch’s real impact on the Court is something that will take time to determine, but at the age of 49, he has the potential to be a key vote in the direction of the court until well into the middle of the 21st Century.
Meanwhile, The Washington Post reports on some of the more amusing things that Justice Gorsuch will face as the junior Justice on the Court:
No one could have known it at the time, but at the end of last summer, Justice Elena Kagan gave Neil M. Gorsuch a face-to-face tutorial on what it means to be the Supreme Court’s newest justice.
It starts in the kitchen.
“I’ve been on the cafeteria committee for six years. (Justice) Steve Breyer was on the cafeteria committee for 13 years,” Kagan said at a Colorado event where she was being interviewed by Gorsuch and Timothy M. Tymkovich, chief judge of the U.S. Court of Appeals for the 10th Circuit.
Gorsuch and Tymkovich both were on President Trump’s list of potential Supreme Court nominees at the time, and it just so happened that they asked what it was like to be the most junior justice.
Kagan is a storyteller, and knows this is a topic that audiences usually eat up, so she played it for all it was worth.
The junior justice has three unique responsibilities, she said. But in recounting them, she always starts with the fact that the newest justice is assigned to cafeteria duty and keeps it until the next justice is confirmed.
“I think this is a way to kind of humble people,” she said during the “fireside chat” at the elegant Broadmoor resort in Colorado Springs. “You think you’re kind of hot stuff. You’re an important person. You’ve just been confirmed to the United States Supreme Court.
“And now you are going to monthly cafeteria committee meetings where literally the agenda is what happened to the good recipe for the chocolate chip cookies.”
The justices eat lunch together on the days when they hear oral arguments, Kagan explained.
“Somebody will say, ‘Who’s our representative to the cafeteria committee again?’ Like they don’t know, right? And then they’ll say, ‘This soup is very salty.’ And I’m like supposed to go fix it myself?”
You might guess it was not the first time Kagan has told the story. But, as she says, she’s worried about the cookies and the soup since 2010–her biggest contribution has been to install a frozen yogurt machine–so who would begrudge her?
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The junior justice’s other responsibilities involve the private conference, when the justices meet alone–no clerks, no assistants–to decide which cases they will take and vote on the cases in which they’ve heard oral arguments.
It’s another event at which seniority rules. The chief justice speaks first, and then each justice speaks in order of longevity on the court. The junior justice speaks last and takes notes of the proceeding.
Kagan likes that duty. “I pay attention, I don’t lose focus and I communicate all our decisions,” she said. But that’s not all.
“The third thing–this is the most important junior justice responsibility–I open the door,” she said.
The conference room is a “real inner sanctum. We have two doors,” she said. Why would someone knock? “Well, you know, one of the justices forgot his glasses. The other justice forgot her cup of coffee.”
Kagan said there are no exceptions to the rule of who answers the door.
“Literally, if I’m like in the middle of a sentence–let’s say it’s my turn to speak or something–and there’s a knock on the door, everybody will just stare at me, waiting for me to open the door,” Kagan said. “It’s like a form of hazing. So, that’s what I do, I open the door. Pronto.”
Good luck chasing down that cookie recipe Justice Gorsuch.
