Trump’s nomination of Neil Gorsuch to the nation’s highest court marks the end of the longest Supreme Court vacancy in history. For the past eleven months the judiciary has been left with open questions and unbinding precedents handed down from an eight-seat Court. With Gorsuch’s qualifications and reputation, it is considered very likely that he will be confirmed to the Court. Will order be restored? I think yes.
The last twelve days have seen waves of far-reaching executive orders, including to build a wall with Mexico, to reverse policy on the Keystone and Dakota Access Pipelines, and the extremely controversial temporary ban on travelers from seven muslim nations and on refugees. Many have expressed worry and confusion about the extent of Trump’s powers and the legality of his executive orders. But as the law sits now, the executive branch has vast and unchecked power. By legislation and the deference of the Supreme Court, executive agencies are allowed to interpret laws for themselves, with limited accountability. This should scare all those scared of Trump.
But Gorsuch, Trump’s own nominee, will seek to reduce the President’s power. His opposition to executive power shines brightly in Guttierez-Brizuela v. Lynch, a decision in which he defended the rights of immigrants against retroactive executive reinterpretation of the law, and further argued that the Chevron doctrine of deference to executive agencies fundamentally violates the separation of powers. Small government conservatives should take heart that Gorsuch will represent their interests and interpret the constitution tightly, with respect to the framers’ intent. Liberals, shaken by day after day of negative political developments, should take solace in the likelihood that Gorsuch will work to quiet the bully pulpit.
It is also worth mentioning that the nomination by no means changes what has been the familiar status quo. Gorsuch is seen as an ideological heir to the late Justice Scalia, whose seat he will fill. The Court’s composition, thus, will be no more threatening to liberal interests than it was in 2012, the year the Court upheld Obamacare, or in 2015, the year the Court inferred the right to same-sex marriage. And anyway, the GOP frontrunners were not necessarily likely to pick a less conservative Justice had they taken the White House. The ideological balance will be restored, for now.
This could change, though. Four Justices are in their late seventies or early eighties. Liberals Breyer and Bader-Ginsburg are seen as unlikely to leave the bench of their own accord during a Trump administration, but old age might intervene, pushing the ideological balance a full seat (or two) to the right. Even if right-leaning Anthony Kennedy retires, far more conservative jurists exist whom Trump might tap, shifting the ideological balance still further right. As predicted, the winner of the 2016 election might have the chance to pick four Supreme Court Justices. Donald Trump may well have the chance to remake the Court, and make it more conservative than it has been since the early Eisenhower administration.
At least until the next vacancy, though, Gorsuch’s presence on the Court will be an asset to the United States and to freedom, and will represent a return—hopefully more than symbolically—to order.