It’s no big deal, the thinking goes, that the Senate seems likely to confirm Judge Neil Gorsuch for the Supreme Court, as President Trump urged in his speech Tuesday night.
The President encouraged this line of thought — that elevating the judge from the United States Court of Appeals for the 10th Circuit “fills [Justice Antonin] Scalia’s seat” with another conservative and just returns the court to a five-justice conservative majority that it had before Scalia passed away last February. Nothing to see here, supposedly; the real action will come when swing Justice Anthony Kennedy or one of the liberal justices leaves, moving the court further to the right. Democrats should hold their fire until it counts.
Unfortunately, this approach obscures the fact that keeping the steady course with a conservative replacement for Scalia will be bad enough across a range of topics important to many Americans, from environmental protection to immigration law to the ability of labor unions to collect dues from their members. Even though Gorsuch is not a Scalia clone, things are likely to be pretty bad on these key issues, because Gorsuch is likely to vote like Scalia, and the court with Scalia already was moving in a very bad direction.
Consider how things will likely get worse in two areas that are the focus of my work, campaign finance and voting rights.
The controversial 2010 Supreme Court decision in Citizens United v. Federal Election Commission held that corporations have a First Amendment right to spend unlimited funds independently supporting or opposing candidates for office. Fortunately, the case concerned only spending limits, and it didn’t say anything about contribution limits. The Supreme Court has generally been much more willing to allow contribution limits because the court has said they pose a greater danger of corruption.
In its most recent campaign finance case, however, 2014’s McCutcheon v. Federal Election Commission, the court started making it harder for states to defend contribution limits, too. In McCutcheon, Chief Justice John Roberts resisted pleas from Senate Majority Leader Mitch McConnell to subject those limits to “strict scrutiny” as spending limits are, but he still gave lower courts several new tools to strike down contribution limits.
The court will soon have the opportunity to revisit the constitutionality of contribution limits, as it faces an appeal brought by Jim Bopp, the lawyer who is behind Citizens United. The case asks the court to overturn its 2003 decision in McConnell v. FEC upholding the limits on six- and seven-figure “soft money” contributions that political parties routinely collected from wealthy donors before Congress passed the main campaign finance law.
Scalia believed the soft money ban was unconstitutional. He, like Justice Clarence Thomas and McConnnell, contended that contribution limits should be subject to strict scrutiny and almost always struck down. Gorsuch likely thinks the same thing. He went out of his way to write a concurring opinion in a 2014 campaign finance case before the 10th Circuit to express his belief that current law already applies something “pretty close” to strict scrutiny to review contribution limits, and there are good arguments to apply full strict scrutiny. But even if he does not, he could follow the chief justice’s McCutcheon opinion and strike the limits down anyway.
The court with Gorsuch, like a court with Scalia still on it, seems poised to kill off what’s left of McCain-Feingold and potentially open the door to candidates taking unlimited contributions from individuals and perhaps even corporations.
Things on the voting rights side could get worse as well. In a 2008 case, Crawford v. Marion County Election Board, Scalia, in an opinion joined by Justice Samuel Alito and Thomas, voted to uphold Indiana’s strict photographic identification law against a constitutional challenge. Scalia took the position that if the voting law imposed little burden on most people, it could be constitutionally applied against all people, even those who face severe burdens getting ID.
The court voted 6-3 to uphold the law, but Scalia’s more extreme position did not prevail. Instead, a narrower opinion by Justice John Paul Stevens, allowing those facing severe burdens to go to court seeking exceptions to the law, prevailed.
The court will likely decide in a matter of weeks whether to take up a follow-on case to Crawford, considering North Carolina’s strict voting law. That law not only imposed a strict voter ID provision, it also cut back on early voting, eliminated some provisional voting, and stopped preregistration of 17- and 18-year-olds. The 4th Circuit held the law was enacted with a racially discriminatory intent in violation of the Voting Rights Act, with the North Carolina Legislature targeting it at African-American voters with “almost surgical precision.”
We don’t have any direct information from his 10th Circuit opinions on how Gorsuch would view such a voting rights claim, but his general approach to interpretation and his overall conservativism suggest he would not likely side with the voting rights plaintiffs in this case. In a 2005 National Review article (which he recently called “probably one of his biggest mistakes,” though it is not clear why he now thinks so) he wrote that “the left” uses constitutional litigation too much to try to protect rights, rather than working through the political process. While Gorsuch may not go as far as Scalia in voting cases, it will be a good bet he will read the Voting Rights Act narrowly so as not to give extra protections to minority voters, seeing it as the left resorting to the courts to solve their problems.
No doubt, things are going to be very bad if one of the liberals or swing Justice Anthony Kennedy leaves the court while Trump is President. But the simple confirmation of Gorsuch would not restore the status quo. It would keep things moving in the very troubling direction they were going while Scalia was still on the court.
