The U.S. Supreme Court term is nearly over, but the influence of the newest justice, Neil Gorsuch, is likely to have an immediate effect on one of the most important cases yet to be heard and on helping select cases the court will take up next.
History will be made Monday when Justice Anthony Kennedy administers the judicial oath to Gorsuch at a White House ceremony. Never before has a sitting justice sworn in a former clerk to become a colleague on the high court bench. Chief Justice John Roberts will privately administer the separate constitutional oath earlier in the day.
The court hears the final 13 cases of the term during the last two weeks in April, when it will be back at full strength for the first time since Antonin Scalia died 14 months ago. Gorsuch will not be able to vote on cases that were argued before he arrived at the court, but he may have a decisive role to play in an important freedom of religion case to be heard April 19.
At stake are laws in well over half the states that prohibit spending tax dollars to support churches. The states say the restrictions are necessary to keep the government from meddling in religious affairs. But to the challengers, they’re nothing more than a form of discrimination.
The case involves a lawsuit brought by Trinity Lutheran Church in Columbia, Missouri. It applied for money from a state program that provides grants to non-profits seeking to cover gravel playgrounds with a rubber surface made from recycled tires. The church wanted to improve the playground at its pre-school and daycare center.
But the state rejected the application, citing a provision in the Missouri constitution that says “no money shall ever be taken from the treasury, directly or indirectly, in any of any church, sect, or denomination of religion.”
As a judge on the 10th Circuit Court of Appeals in Denver, Gorsuch supported a private company and an order of Catholic nuns who argued in two separate cases they should not have to provide contraceptive insurance coverage for their employees — despite Obamacare’s requirements — because doing so would violate their religious beliefs.
Religious freedom is also at the heart of a pending case the court has not yet agreed to hear, testing whether businesses can refuse, on religious grounds, to provide services for same-sex weddings.
Over the past few months, the justices have repeatedly listed the case for discussion at their private conferences where they decide which cases to hear. Gorsuch could provide the fourth vote needed to grant review.
That case will likely be among those discussed when Gorsuch meets with the rest of the court in a closed-door conference Friday — his first official act as a justice.
Another case awaiting action asks the court to decide whether the Second Amendment provides the right to carry a gun outside the home.
After issuing its landmark ruling in 2008 that the Second Amendment provides a right to keep a handgun at home for self-defense, the Supreme Court has repeatedly declined to step back into the issue. The justices have denied review of dozens of cases intended to test the reach of gun laws outside the home.
Though Justice Gorsuch cannot vote on cases already argued but not yet decided, he could still end up playing a role. If the court is tied 4-4 on any of those cases, the justices could order them to be re-argued, which would allow him to participate and eliminate the possibility of another deadlock.
The Senate voted 54-45 Friday to confirm his nomination. The entire process, from President Trump’s announcement to the final vote, took 66 days. That’s two days faster than the average for the eight other current justices.
At age 49, Gorsuch will be the youngest justice on the court by more than a decade. The average age of his colleagues is just shy of 70. At 84, Ruth Bader Ginsburg is the oldest justice on the court.