And Gorsuch Makes Nine: Professor Weighs in on Full Supreme Court

With the April addition of Neil Gorsuch, the U.S. Supreme Court is fully staffed again. To get a better sense of what his appointment means for future court cases, and possibly the composition of the court in the future, we sat down with Robert Hume, Ph.D., professor of political science and chair of the political science department.
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Related Post: The U.S. Supreme Court: What Now?

Full transcript below

Patrick Verel: This is Patrick Verel and today, I am talking with Robert Hume, a professor of Political Science at Fordham and the Chair of the Political Science department. Now let’s start with the most recent development, the addition of Neil Gorsuch to the Supreme Court. How does this change the court with regards to upcoming cases?

Robert Hume: My first take on the Gorsuch appointment is that it probably wouldn’t change things all that much because Scalia was a fairly conservative judge and Gorsuch is also a fairly conservative judge. But Gorsuch is also a young judge. And to be a 40-something conservative in 2017, is different from what it would have been to have been a conservative in the 1980s, when Scalia was appointed. He’s unquestionably conservative, but I wonder if he’s gonna have the same desire to push back on social issues like same-sex marriage for example, possibly abortion, affirmative action. Obviously he’s more conservative of a candidate than we would have gotten if Garland had been put on the Supreme Court. So I think for people who are hoping that the Supreme Court would more in a more liberal direction, there’s bound to be a lot of disappointment.

But, Gorsuch is unquestionably a legal a professional. He’s unquestionably qualified, and he’s also young. I think conservatives look to his youth as a sign on influence in the years to come and that’s undoubtedly true. I think where liberals can take a little bit of solace in his youth is the fact that because he’s young, he might actually prove to be more liberal on certain social issues than conservatives might expect.

Patrick Verel: What do you think are going to be some of the more consequential cases that the court is going to decide in the next term?

Robert Hume: Well, I’m very interested to see what happens with religious freedom. What’s been difficult in terms of watching the Court this term, is the Court has taken few cases than usual, because it was short staffed and there was the concern that they might divide evenly. And the cases that they did take, most of those Gorsuch would not have participated in. The one in which he did participate, involved the Trinity Lutheran Church. This was a church that wanted to improve its playground. And ordinarily, if the Trinity Lutheran Church had been any other organization, they would have qualified to receive state financing for these materials. But because they were church, because it was a religious group, the state was concerned that there might be an establishment clause violation, and so they denied the school the use of those funds. So now it’s before the Court and the Justices need to determine whether this is appropriate, how accommodating they want to be towards religious groups. And so, I think Gorsuch’s vote on that might be instructive.

Patrick Verel: The Courts played a key role in stopping President Trump’s travel ban. Do you see the Supreme Court actually going along with it if it’s brought to the Court? Can you see other areas where the Court might end up going head to head with Trump?

Robert Hume: Well, we’re only six months into the Trump presidency, so if we already have a major Constitutional challenge at this point, I have no doubt that this is the first of many Constitutional challenges to come. But on this one in particular, not only do I think Trump might win, but I think he has a good point, depending on how the case presents itself. And that’s because, when the Fourth Circuit struck down the travel ban, they did so on the basis of statements that Trump had made as a candidate and there’s a disagreement among judges and among legal experts, about what evidence is appropriate to consider when you’re looking at intent.

Should you look at the law as it was written? So should you look at the travel ban as it actually was written? Or should you look at the intentions of the politicians who wrote it? And if you look at the intentions of the politicians, should you look at their intentions at the time they wrote it or should you look back further in time? Many would say that if you’re not going to stick to the plain text of the travel ban, that it might be appropriate to look at the intention at the time of enactment, but the campaign statements are off the table. Because people can change their minds. What people said at one time might not reflect their intent at the time that they actually enacted the law. I think Trump could make a very winnable argument that what he said as a candidate is irrelevant to the law that was enacted because the law, on its face, is neutral with regards to religion.

If the case comes before the sitting Justices and it’s presented in this way, I think it’s very winnable for him. And then I don’t know that Trump, on this issue, would be wrong either because down the line, whether you’re a Trump supporter or not, I wonder how much we want to hold politicians to statements that they make during their campaigns. I think there’s a good argument for sticking to the law as it’s written.

Patrick Verel: He made the comments about it being a travel ban, even as the president though. Not just as a candidate.

Robert Hume: Well that’s true. I mean, it’s true that what Trump is saying has changed. He’s toned down this explicitly religious, so a travel ban perse might not be problematic. I mean, it is a travel ban. It’s whether the intention is to discriminate on the basis of religion.

Patrick Verel: Last time we talked, we talked about the replacement for Scalia, and you told me the bigger story would be when Justice Kennedy decides to step down.

Robert Hume: I thought for a while that there’s a good chance that Anthony Kennedy, who’s the swing vote on the Supreme Court, could retire any time now. He could choose to retire this term, so it could be this June. For him, the timing could be quite good. He votes in a conservative direction probably more often than not, so he’d still be very comfortable with a conservative reappointing him. But, I think, the appointment of Neil Gorsuch also has the possibility to send some signals to Kennedy that it’s a safe time to retire. Gorsuch was one of Kennedy’s clerks and I even wonder if the appointment of Gorsuch was a signal to Kennedy, from the President, to say “Look, the Supreme Court’s in safe hands.”