Although I and many other evangelicals were in the #NeverTrump camp, few evangelicals or political conservatives are questioning the president’s choice in nominating Judge Neil Gorsuch for the Supreme Court. Gorsuch appears to be an eminently qualified and articulate defender of judicial restraint and “textualism,” meaning that judges should rule in accordance with what a law or the Constitution’s text meant at the time of its adoption. Gorsuch has already shown as willingness to stand up to Trump, as well, as illustrated by his recent response to Trump’s criticisms of judges who oppose his various executive orders.
I am optimistic about Gorsuch, but I also would advocate some caution—Christians should not see Gorsuch as the cure for all political ills. First, it remains peculiar (at best) that so many Christians supported Trump just for this moment, in hopes that Trump might appoint a conservative-seeming justice who might actually be conservative on the Court, at least on issues that matter the most to Christians. Nevertheless, we have arrived at his first SCOTUS pick, and Gorsuch is certainly preferable for Christian conservatives to anyone Hillary Clinton might have nominated.
Still, I am struck by the fact that amid all the pro-Gorsuch hoopla, we don’t know for sure what he thinks about abortion, arguably the most important issue for Christian conservatives. He’s left some good signs that he would, in fact, favor abortion restrictions, most notably when he wrote in his book The Future of Assisted Suicide and Euthanasia, “All human beings are intrinsically valuable . . . the intentional taking of human life by private persons is always wrong.”
But as Emma Green noted in an excellent analysis at The Atlantic, pro-abortionists argue that an unborn baby (a “fetus”) is not a human life, and that the 14th amendment’s protections of “life, liberty, and property” do not apply to unborn children. Also, the weight of precedent behind Roe v. Wade might make a judge like Gorsuch hesitant to overturn the decision. Less likely, but still possible, is that Gorsuch will take up the radical individualist views of the Supreme Court justice for whom he clerked, Anthony Kennedy (a Ronald Reagan nominee).
Kennedy notoriously wrote in Planned Parenthood v. Casey (1992), “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” On the basis of such pabulum, Kennedy and Supreme Court majorities have discovered rights to abortion and gay marriage in the Constitution. To be fair, Gorsuch has repudiated the “sweet mystery of life” passage, as Justice Antonin Scalia called it, but Gorsuch has also noted that the weight of precedent behind Roe and Casey is powerful.
The best pro-Gorsuch post I have read is by the distinguished judge and constitutional scholar Michael McConnell, who once worked with Gorsuch on the Tenth Circuit Court of Appeals. McConnell praises Gorsuch in the highest terms, on the basis of his qualifications, track record, and clear, brilliant opinions. But McConnell does not believe that we should expect him (or the Court generally) to act decisively against Roe or to revisit gay marriage. McConnell explains:
Judge Gorsuch is a longstanding proponent of the view that the Constitution must be interpreted according to its text as it was understood by those with authority to enact it. . . The same principles probably make Judge Gorsuch skeptical of the Supreme Court’s jurisprudence on same-sex marriage and abortion. But whatever his views may be, they will not affect the balance of votes on those issues. He is replacing Justice Scalia, after all.
I personally believe that the issue of same-sex marriage will not be reopened, and that some 45 years of precedent make radical change on abortion unlikely, no matter who is on the Court or what they think of the legal reasoning in Roe v. Wade. Most importantly, Judge Gorsuch has never had a case on abortion rights, same-sex marriage, gun rights, or affirmative action. Any worries or hopes on these issues are purely a matter of speculation.
McConnell notes that Gorsuch’s opinions on religious liberty are far more clear, as he participated in rulings to defend the Hobby Lobby company and the Little Sisters of the Poor from the requirements of the abortifacient and contraceptive mandate of the HHS under the Obama administration. For this alone, conservative Christians should be heartened by Gorsuch’s nomination, and precedent-setting cases on religious liberty will certainly keep coming before the Court in the next few years.
The problem that lies behind all these discussions is that the Supreme Court was never meant to wield the kind of law-making authority that it has over recent decades, most obviously in the cases of abortion and gay marriage. If the Court would have restrained itself and let the democratic process in the states sort out these issues, then neither the Left nor the Right would need to put so much weight on what they hope a judge will do on the Supreme Court.
For the foreseeable future, however, we are going to live with the legacy of decades of judicial activism on social issues. Given where we are, Christian conservatives should be heartened by Gorsuch. His nomination is the best decision yet in an otherwise rough opening month of the Trump administration. But let’s not get ahead of ourselves—Gorsuch won’t have the power to solve Christian conservatives’ political “problems.” On abortion, we are not even certain how he would view overturning Roe.