SCOTUS Justice Gorsuch

More from this show

Using the so-called nuclear option, the U.S. Senate confirmed Neil Gorsuch to the United States Supreme Court. Arizona State University Law Professor Paul Bender and local attorney Stephen Montoya will discuss Gorsuch’s impact on the court and the impact of the possibility of future nominees being confirmed with fewer votes now that the nuclear option has been used.

TED SIMONS: THIS IS THE FIRST FULL WEEK ON THE BENCH FOR U.S. JUSTICE NEIL GORSUCH, WHAT KIND OF IMPACT WILL HE HAVE ON THE SUPREME COURT AND WHEN WILL THAT IMPACT BE FELT? WE ASKED ARIZONA STATE LAW PROFESSOR PAUL BENDER AND LOCAL ATTORNEY STEPHEN MONTOYA.

TED SIMONS: WHO IS NEIL GORSUCH?

BENDER: HE'S THE NINTH JUSTICE ON THE U.S SUPREME COURT NOW. HE HEARD HIS FIRST CASES YESTERDAY. HE HEARD HIS SECOND TODAY. HE'LL HEAR SOME TOMORROW, WHICH ONE OF WHICH IS POTENTIALLY VERY INTERESTING, AND HE'LL SIT THREE DAYS NEXT WEEK, IN ALL HE'LL HEAR 13 CASES. THOSE CASES WILL ALL BE DECIDED BY THE END OF JUNE, SO YOU'LL GET SOME IDEA OF WHAT HE IS, BASED ON THOSE DECISIONS. HE'LL PROBABLY WRITE AN OPINION IN ONE OF THOSE CASES. IT WON'T BE A VERY IMPORTANT CASE BECAUSE THEY NEVER GIVE NEWBIES IMPORTANT CASES, BUT IT WILL BE AN UNANIMOUS OPINION. BUT HE MAY WRITE SEPARATE OPINIONS AND THERE MAY BE A COUPLE OF OTHER CASES, AND YOU'LL GET AN INDICATION THAT HE IS A SOLID MEMBER OF THE CONSERVATIVE BLOCK.

TED SIMONS: SO FAR I READ SOMEWHERE THAT HE WAS ASKING A LOT OF QUESTIONS. HE'S KIND OF LIKE THE NEW KID IN TOWN, NEW KID IN SCHOOL. WHAT ARE WE SEEING AND HEARING FROM HIM SO FAR IN THIS FIRST WEEK?

MONTOYA: I HEARD HE WAS VERY ACTIVE IN ORAL ARGUMENT. I DON'T KNOW IF THAT WAS SURPRISING. PERHAPS HE'S TRYING TO FOLLOW IN HIS HERO AND MENTOR'S FOOTSTEPS. THAT WOULD BE JUSTICE SCALIA, WHO AS DEAN BENDER KNOWS WAS VERY ACTIVE ON THE BENCH. OR MAYBE HE'S ALWAYS BEEN THAT WAY. I HAVE HEARD ON THE 10th CIRCUIT WHERE HE SAT FOR MANY YEARS, HE WAS ALSO VERY ACTIVE ON THE BENCH. SO I DON'T THINK IT'S NEW FOR HIM.

TED SIMONS: DO YOU SEE HIM AS A RELIABLE CONSERVATIVE, OR IS HE CAPABLE OF SURPRISE?

MONTOYA: I THINK ALL JUSTICES ARE CAPABLE OF DEEP AND PROFOUND SURPRISE. BUT, NEVERTHELESS, I THINK SQUARELY GOING TO BE IN THE CONSERVATIVE CAMP. I THINK THERE'S REALLY NO DOUBT OF THAT GIVEN HIS CONSISTENTLY AND DEEPLY CONSERVATIVE TRACK RECORD ON THE 10th CIRCUIT, WHERE HE PUBLISHED EXTENSIVELY, AND I THINK HE DEMONSTRATED TO BE ONE OF THE MOST CONSERVATIVE CIRCUIT JUDGES IN THE UNITED STATES.

BENDER: I AM NOT SURE OF THAT. I JUST HAVEN'T LOOKED INTO THAT AT ALL. BUT YOU CAN'T REALLY TELL WHAT SOMEBODY IS GOING TO BE LIKE. IT'S DIFFERENT. YOU'RE STILL A JUDGE, BUT BEING A JUDGE ON THE SUPREME COURT IS DIFFERENT FROM BEING A JUDGE ON A LOWER COURT BECAUSE YOU CAN DO ANYTHING ON THE SUPREME COURT. THE LOWER COURT, SO MUCH OF IT IS OCCUPIED WITH FOLLOWING THE SUPREME COURT'S PRECEDENT, BUT HERE YOU CAN DO THAT. I HAVE -- MAYBE IT'S A FANTASY, BUT JUSTICE KENNEDY HAS BEEN IN THE MIDDLE OF THE COURT AND HAS BEEN MIGRATING TOWARD THE LIBERAL SIDE OVER THE PAST SEVERAL YEARS. HE WAS -- GORSUCH WAS HIS LAW CLERK, AND THEY ARE VERY CLOSE. ONE THING THAT MIGHT HAPPEN IS KENNEDY MIGHT INFLUENCE HIM TO BECOME MORE LIKE KENNEDY, WHEREAS HE NEVER WAS ABLE TO INFLUENCE SCALIA TO DO ANYTHING. SO I HAVE A FEELING HE MAY END UP WITH, I THINK IT WOULD BE WONDERFUL IF HE AND KENNEDY ENDED UP KIND OF IN THE MIDDLE OF THE COURT, BECAUSE THAT'S WHAT THE COURT NEEDS RIGHT NOW.

TED SIMONS: BUT THAT'S NOT NECESSARILY LIKELY.

BENDER: I DON'T KNOW. I DON'T THINK YOU CAN TELL. I REALLY DON'T. YOU'LL GET SOME SENSE OF THAT FROM HIS -- HOW HE VOTES IN THESE 13 CASES, ONE OF THEM TO BE ARGUED TOMORROW MORNING, IS POTENTIALLY A VERY INTERESTING CASE INVOLVING SEPARATION OF CHURCH AND STATE. THE COURT HAS BEEN HOLDING THAT CASE, WAITING FOR A NINTH JUSTICE.

TED SIMONS: I WANT TO GET TO THAT IN A SECOND. IN WHAT WE HAVE HEARD AND SEEN FROM HIM SO FAR, HE MENTIONED THE PLAIN TEXT OF THE STATUTE NUMEROUS TIMES AND WHAT LITTLE HE'S HEARD SO FAR. SIGNAL THERE?

MONTOYA: I THINK IT'S A SIGNAL CONSISTENT WITH HIS PAST, NAMELY, LIKE HIS INTELLECTUAL MENTOR, SCALIA, HE'S A TEXTUALIST. HE'S GOING TO FOCUS UPON THE WORDS OF THE CONSTITUTION, IN THEIR ORIGINAL UNDERSTANDING, WHATEVER THAT WAS OR COULD BE, MORE THAN ANYTHING ELSE. THAT'S WHAT HE HAS DONE AS A SCHOLAR, AS A WOULD BE SCHOLAR. THAT'S WHAT HE DID ON THE BENCH ON THE 10th CIRCUIT. I THINK HE'LL CONTINUE TO DO THAT. HE IS A RELATIVELY MATURE MAN. BUT I DO AGREE WITH DEAN BENDER. THESE GUYS CHANGE A LOT. CHIEF JUSTICE ROBERTS, HE'S THE ONE WHO RENDERED A VERY, VERY BROAD STATUTE, THE AFFORDABLE CARE ACT, CONSTITUTIONAL. SO WE CAN'T BE SURPRISED WITH WHAT THESE GUYS DO.

BENDER: AND SOME PEOPLE HAVE REALLY CHANGED ON THE BENCH. JUSTICE BLACKMUN STARTED OUT AS ONE OF THE MOST CONSERVATIVE AND ENDED UP AS ONE OF THE MOST LIBERAL ON THE COURT. SO IT'S POSSIBLE, EVEN WHEN YOU HAVE SPENT A NUMBER OF YEARS ON A LOWER COURT, IT'S POSSIBLE TO CHANGE EVEN ONCE YOU'RE ON THE COURT.

TED SIMONS: LET'S GET TO THE CHURCH CASE, THEY HELD THAT FOR HIM.

BENDER: THE CASES ARGUED THIS WEEK, CERT WAS GRANTED IN JANUARY A YEAR BEFORE THAT, THEY HAVE BEEN HOLDING IT ALL OF THIS TIME, HOLDING IT 4-4. THEY TOOK THE CASE BEFORE SCALIA DIED. OKAY? SCALIA DIED ABOUT A MONTH LATER AFTER THEY TOOK THE CASE. I AM THINKING THEY ARE HOLDING IT FOR HIM. AND PROBABLY, IF YOU'RE RIGHT THAT HE IS GOING TO BE A SOLID MEMBER OF THE CONSERVATIVE BLOCK, HE WOULD VOTE WITH THE CONSERVATIVES ON THIS CASE. IT HAS ARIZONA IMPLICATIONS. MISSOURI HAS A STATUTE, LIKE ARIZONA HAS, THAT STATE MONEY MUST NOT GO TO RELIGIOUS ORGANIZATIONS OR RELIGIOUS SCHOOLS, AND IN THIS CASE THEY WERE PAYING FOR REPAVING PLAYGROUNDS TO HAVE A SOFTER SURFACE, AND IF YOU APPLIED, YOU WOULD GET THE MONEY TO DO THAT. A RELIGIOUS SCHOOL APPLIED, AND THEY WERE TOLD NO, WE CAN'T DO THAT UNDER THE MISSOURI CONSTITUTION, WHICH SAYS NO STATE MONEY SHALL TO RELIGIOUS INSTITUTIONS, AND THAT WAS CHALLENGED BY A RELIGIOUS INSTITUTION AS VIOLATING THE EQUAL PROTECTION CLAUSE AND FREE EXERCISE. THEY SAID YOU'RE DISCRIMINATING AGAINST RELIGION, AND THAT'S THE ISSUE THE COURT TOOK THE CASE TO DECIDE. IT SEEMS TO ME IF THEY WERE WAITING 4-4, IT'S NOW 5-4 ON THE SIDE, THAT'S NOT CONSTITUTIONAL.

TED SIMONS: I WAS GOING TO SAY, IT SOUNDS LIKE HIS WHEELHOUSE A LITTLE BIT, ISN'T IT?

MONTOYA: IT'S IN HIS HISTORY. THE HOBBY LOBBY CASE CAME OUT OF THE 10th CIRCUIT. JUDGE, NOW JUSTICE GORSUCH, WAS IN FAVOR OF THE DECLARATION THAT THE AFFORDABLE CARE ACT WAS UNCONSTITUTIONAL INSOFAR AS IT COULD PREJUDICE RELIGIOUS EXERCISE.

BENDER: THERE'S SOMETHING TO SAY ABOUT THAT CASE BEFORE YOU GO ANY FURTHER. THAT ISSUE, THAT CASE MAY NOT BE DECIDED BY THE COURT. A WEEK AGO I THINK THE GOVERNOR FROM MISSOURI SAID THEY WEREN'T GOING TO DO THAT ANYMORE. THEY WERE GOING TO FUND THIS SCHOOL, AND THEY HAVE FUNDED THIS SCHOOL, SO THE CASE MAY BE MOOT. THE COURT ASKED THE SIDES TO FILE LETTERS YESTERDAY ABOUT WHETHER THEY THOUGHT THE COURT CASE WAS MOOT. BOTH SIDES SAID, NO, GO AHEAD AND DECIDE THE CASE. IF THE COURT IS HAVING PROBLEMS WITH IT, ESPECIALLY WITH SOMEBODY LIKE JUSTICE KENNEDY, WHO IS ON THE FENCE, THEY ARE PERFECTLY CAPABLE OF SAYING THAT CASE IS MOOT BRING US A REAL ONE.

MONTOYA: THEY MIGHT ASSESS MONEY DAMAGES, WHICH WOULD REVIVIFY THE CASE.

TED SIMONS: HOW MANY OF THESE THINGS COULD THINGS BE REARGUED? HOW DOES THAT WORK?

MONTOYA: AS DEAN BENDER TAUGHT ME, THAT WORKS BY THE TRADITION OF THE COURT. IF THERE IS A 4-4 SPLIT AND YOU HAVE A NINTH JUSTICE WHO CAN RESOLVE THIS SPLIT, THEN THEY HOLD THE CASE OVER FOR REARGUMENT. THAT'S MY UNDERSTANDING.

BENDER: THEY HAVEN'T DONE THAT YET. LAST YEAR, I THINK THEY DIDN'T HOLD ANY OVER, AND NOW THEY HAVE ABOUT 30 CASES THAT THEY HAVEN'T DECIDED THAT WERE HEARD BY EIGHT JUSTICES. HE CANNOT PARTICIPATE.

TED SIMONS: HE CANNOT AT ALL?

BENDER: NOT UNDER THE COURT'S TRADITIONS, HE CAN'T. THERE MAY BE SOME 4-4 CASES. IN WHICH CASE, I THINK THAT'S WHAT THEY'LL DO. THEY CAN SET THEM OVER FOR NEXT TERM AND HE CAN PARTICIPATE. WHEN THEY GRANT CERT, HE CAN PARTICIPATE. BUT HE CAN'T PARTICIPATE IN DECIDING CASES WHEN HE HASN'T HEARD ARGUMENT.

TED SIMONS: WHAT IMPACT DO YOU SEE?

MONTOYA: I DON'T THINK HE'LL HAVE A BIGGER IMPACT THAN SCALIA. IN SOME WAYS, JUSTICE GORSUCH IS PARADOXICAL. I DON'T THINK HE'S GOING TO HAVE A BIG IMPACT ON THE VOTES OF THE COURT VIS-À-VIS THE WAY THE COURT VOTED UNDER SCALIA. I DO THINK HOWEVER HE MARKS A NEW ERA IN THE COURT, AND THAT IS AN ERA OF A MORE POLITICIZED COURT. I THINK THAT BECAUSE THEY'VE DONE AWAY WITH THE FILIBUSTER WITH -- BECAUSE THEY HAVE DONE AWAY WITH THE FILIBUSTER FOR THE LOWER COURT, AND NOW WITH THE FILIBUSTER FOR THE SUPREME COURT JUSTICES, YOU'RE GOING TO HAVE MORE PARTISAN JUSTICES AND JUDGES APPOINTED TO THE FEDERAL COURT, AND I THINK THAT THE POLITICAL DIVISION WE SEE IN CONGRESS IS GOING TO START TO BE REFLECTED ON THE COURT IN A GREATER DEGREE. SO I DO SEE THIS AS A WATERSHED MOMENT PERHAPS IN THE HISTORY OF THE COURT AND THE FEDERAL JUDICIARY IN BECOMING MORE POLARIZED AND PARTISAN POLITICALLY.

BENDER: THAT WOULD BE A SHAME.

TED SIMONS: WE'LL TALK ABOUT THAT QUITE A BIT, IT SEEMS LIKE, INCREASINGLY.

BENDER: ONE THING ABOUT GORSUCH THAT'S CLEARLY DIFFERENT FROM SCALIA, SCALIA I DON'T THINK EVER PERSUADED ANYBODY ELSE TO JOIN HIM. HE DIDN'T TO, HE DIDN'T CARE. HE WAS GOING TO SAY WHAT HE WAS GOING TO SAY. IT WAS FINE WITH HIM. I DON'T THINK THAT'S GOING TO BE GORSUCH. I THINK GORSUCH IS GOING TO BE SOMEBODY WHO TALKS TO PEOPLE ON THE COURT AND MAY TRY TO PERSUADE OTHER PEOPLE. HE MIGHT HAVE AN INFLUENCE IN DOING THAT THAT SCALIA WAS NEVER ABLE TO HAVE.

MONTOYA: ON THE OTHER HAND, GORSUCH APPEARS TO BE MORE CONSERVATIVE THAN JUSTICE SCALIA. FOR EXAMPLE, JUSTICE SCALIA WAS RELATIVELY LIBERAL IN FIRST AMENDMENT CASES, ON FOURTH AMENDMENT SEARCH AND SEIZURE CASES. I DON'T SEE ANY EVIDENCE OF THAT IN JUDGE GORSUCH'S HISTORY ON THE 10th CIRCUIT. IT MIGHT CHANGE NOW THAT HE IS A JUSTICE.

BENDER: OR ONE TEST OF THAT IS THE GAY MARRIAGE CASE. JUSTICE KENNEDY WROTE THE GAY MARRIAGE DECISION. IF GORSUCH WERE ON THE COURT, WOULD HE NOT THINK TWICE ABOUT DISAGREEING WITH KENNEDY ABOUT SOMETHING LIKE THAT, AND MIGHT KENNEDY NOT HAVE SOME INFLUENCE ON MODERATING HIM, OR HE MIGHT HAVE AN INFLUENCE ON PULLING KENNEDY OVER? SO TO ME THAT'S THE MOST INTERESTING THING ABOUT THE COURT, AND THE COURT IS NOT GOING TO CHANGE FROM THE WAY IT WAS WITH SCALIA, NO MATTER WHAT GORSUCH WAS LIKE. IT'S THE NEXT VACANCY THAT'S IMPORTANT.

TED SIMONS: WE'LL HAVE THAT DISCUSSION WHEN IT HAPPENS.

BENDER: IT COULD BE A WHILE.

TED SIMONS: IT'S GOOD TO HAVE YOU BOTH HERE. THANK YOU VERY MUCH. I APPRECIATE IT.

Paul Bender: Arizona State University Law Professor
Stephen Montoya: local attorney

A cactus blooms in the Sonoran Desert
aired Feb. 28

Desert Dreams: Celebrating Five Seasons in the Sonoran Desert

A cute little duckling with text reading: Arizona PBS Ducks in a Row Event
March 6

Getting Your Ducks in a Row to Avoid Conflict When You Are Gone

Barry Gibb singing (Bee Gees: In Our Own Time)
aired Feb. 24

Bee Gees: In Our Own Time

Johnny Cash, Waylon Jennings, Kris Kristofferson and Willie Nelson
aired Feb. 23

The Highwaymen: Live at Nassau Coliseum

Subscribe to Arizona PBS Newsletters

STAY in touch
with azpbs.org!

Subscribe to Arizona PBS Newsletters: