HL 40 – Gorsuch Hits the Fan

June 29, 2017

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Most attention paid to the SCOTUS actions announced Monday (6/26/17) centered on the grant of certiorari for Trump’s petitions to reverse the Fourth and Ninth Circuit’s injunctions against his second travel ban.  That and the Court’s partial stay of those injunctions pending a decision on the merits next term.

Justice Gorsuch

But the attention of SCOTUS watchers focused more intently on the work product of rookie Justice Neil Gorsuch, expansively revealed for the very first time in one tension filled hour, when the Court’s final day orders and decisions were announced.  It proved a very ugly picture, confirmed many gloomy predictions about Gorsuch and surpassed some dire ones in previous HL posts.

In these “pages” it was predicted that Gorsuch opinions and votes would most resemble Justice Alito’s.  And come the merits decision on the travel ban, Gorsuch would join a majority affirming the circuits’ nullification of the ban, if only to show he was not “Trump’s bitch.”  But on Monday, Gorsuch joined a dishonest and badly reasoned dissent authored by Justice Thomas, taking issue with the Court’s maintenance of the travel ban injunction for the named challengers and any aliens from the six Muslim nations with bona fide relationships similar to those involving the plaintiffs.  The dishonesty was Thomas’ statement that the Court had “implicitly” found that the government was likely to prevail on the merits.  Not only was that not a subtext of the Court’s per curiam (unsigned) opinion but the Court’s conversion of a case brought by specific people and entities injured by the travel ban into a virtual class action leaves the nationwide injunction substantially in place and, if anything, suggests a majority is tilting against Trump on the merits.  But Gorsuch now appears in the Trump column along with Thomas and Alito.  And his performance this day suggests a nascent alliance with and affinity less with Alito than the frequently looney Thomas – he, for example, of the view that states are free to establish their favored religion, such as the Islamic Commonwealth of Virginia.

Justice Thomas

Justice Thomas repaid the favor by joining in an equally dishonest dissent written by Gorsuch in another of the Court’s rulings, a very rare summary reversal in Pavan v. Smith.  The case involved a lesbian married couple (actually two) who challenged Arkansas’ practice of refusing to have both women listed on the birth certificate of the biological child of one spouse.  The state inscribed both names for opposite sex couples when the mother’s husband was not the child’s biological parent.  Without bothering to hear oral argument, the Court summarily reversed Arkansas’ high court on authority of Obergefell, the 2015 landmark same-sex marriage precedent.

That decision clearly said that same sex couples must not only be allowed to marry but may not be deprived of any in “the constellation of benefits that the states have linked to marriage.”  Both spouses’ names on a birth certificate clearly is a major star in that constellation.  Not in Galaxy Gorsuch nor in Thomas’.  Their dissent said that the disparate treatment of same-sex couples had nothing to do with marriage but merely advanced the state’s legitimate “biology based birth registration regime.”

That was a lie advanced by Arkansas and repeated by Gorsuch, since it was conceded that a birth-mother artificially inseminated with sperm from a donor other than her husband would get hubby’s name on the certificate while Ms. Pavan could not have her wife’s name on the document.  She couldn’t even if she had been inseminated with sperm from the same donor that assisted the opposite sex couple.  The legal reasoning in this dissent has the look and feel of the Gorsuch confirmation testimony about his infamous frozen truck driver opinion (in Transam Trucking v. Dept. of Labor) that prompted Senator Franken to observe “I had a career in identifying absurdity and I know it when I see it.”  Gorsuch’s treatment of Obergefell in this dissent also smells like his evasive testimony about the deference he would accord the Roe v. Wade precedent.

The budding Gorsuch/Thomas alliance was further developed in a third dissent.  They dissented from the Court’s refusal to hear a challenge to California’s virtual prohibition of openly carrying guns.  The Thomas dissent joined by Gorsuch, said the Court’s action “reflects a distressing trend: the treatment of the Second Amendment as a disfavored right.”  Clearly among America’s biggest constitutional problems, these fine days.

And still more Gorsuch, a lot.  He assumed the role of “Ghost of Christmas Future” in two previously argued cases now set for re-argument next term, obviously because the Court was 4-4 deadlocked.  Predictably Gorsuch will provide the fifth vote in a Roberts/Thomas/Alito/Kennedy/Gorsuch bloc.  That majority will find lawful the detention of immigrants without a bond hearing in Jennings v. RodriguezThe same five will allow the deportation of a lawful alien because he committed “aggravated felonies,” a term so vaguely worded and defined in federal statute that the Ninth Circuit ruled the proposed deportation unconstitutional, Sessions v. Dimaya.

There will be many more Such Gory days, but mark this as the one where the texture and severity of the incipient calamity was revealed.


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