With Supreme Court back at full strength, 2nd Amendment, religious liberty cases await
The swearing-in of Justice Neil M. Gorsuch on Monday restores the Supreme Court to full strength for the first time in nearly 14 months and sets the stage for further conservative victories that could start accumulating quickly.
A Second Amendment challenge out of California, a religious liberty test from Missouri and a voter ID law problem from North Carolina now await Gorsuch and his eight high-court colleagues. Following private and public swearing-in ceremonies Monday morning, Gorsuch began digging into the first of the cases that could consume him for decades to come.
“I am humbled by the trust placed in me today,” Gorsuch said in the White House Rose Garden. “I will never forget that to whom much is given, much will be expected.”
Gorsuch’s impact could become apparent as early as Thursday, when justices meet for their near-weekly private conference to consider petitions. If at least four justices agree, a case can be accepted and added, at this point in the year, to the court’s oral argument docket for the term that starts next October.
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Notably, a California resident named Edward Peruta is challenging a denial of his request for a concealed-carry permit that would enable him to take a hidden handgun outside of his home. The San Diego County Sheriff’s Department limits the concealed-carry permits to those who can show they have specific, particular needs for self-defense.
“The whole point of the sheriff’s policy is to confine concealed-carry licenses to a very narrow subset of law-abiding residents,” Peruta’s attorneys wrote. “And because California law prohibits openly carrying a handgun outside the home, the result is that the typical law-abiding resident cannot bear a handgun for self-defense outside the home at all.”
Yolo County, in the Sacramento Valley, maintains a similarly stringent concealed-carry permit policy.
The lead attorney, former George W. Bush administration Solicitor General Paul Clement, further characterized Peruta’s challenge as raising “perhaps the single most important unresolved Second Amendment question” since the Supreme Court’s 2008 decision striking down a District of Columbia gun ban.
Though Gorsuch lacks a Second Amendment track record from his decade on the Denver-based 10th U.S. Circuit Court of Appeals, his overall reputation as a Western conservative reassures gun-rights advocates. The National Rifle Association spent a reported $1 million on pro-Gorsuch ads during the campaign that led to his confirmation by the Senate on a 54-45 vote last Friday.
Gorsuch is also a self-professed admirer of the late Justice Antonin Scalia, the author of the Supreme Court’s landmark 2008 Second Amendment decision, which found the Constitution protects an individual’s right to possess firearms without regard to any militia membership. Scalia’s death in February 2016 set in motion the political battle that led first to Senate Republicans blocking any consideration of Judge Merrick Garland for the position and then to Gorsuch’s eventual confirmation.
“I won’t ever forget that the seat I inherit today is that of a very, very great man,” Gorsuch said.
The confirmation came after Republicans changed Senate rules to water down the filibuster, allowing endless debate to be cut off with 51 votes instead of 60 on Supreme Court nominations. Senate Democrats had adopted a similar majority rules maneuver in 2013 for lower-level judicial and executive branch candidates.
With Congress out of town on Monday, Gorsuch’s dual swearing-in ceremonies unfolded with little sign of lingering bitterness and amid crisp spring weather.
The first ceremony took place at about 9 a.m. in the justices’ conference room, with Gorsuch’s family members present and Chief Justice John Roberts Jr. administering the oath required by the Constitution.
The second ceremony took place in the White House Rose Garden, led by President Donald Trump and attended by the other eight Supreme Court justices as well as three Republican senators and a host of allies. Justice Anthony Kennedy, for whom Gorsuch once clerked, administered the federal judicial oath; Kennedy wearing his black robes and Gorsuch in a dark suit.
“Spring is really the perfect backdrop for this joyful gathering of friends, because together we are in the process of reviewing and renewing, and also rebuilding our country,” Trump said.
Trump also seemed to make a point of praising the 80-year-old Kennedy, whose own long-term plans come under sharper focus with Gorsuch’s ascension.
With the ceremonies done, Gorsuch returned to claim his new Supreme Court chambers and resume his preparations for the private conference Thursday as well as his first public oral arguments next Monday. Thirteen cases remain set for argument this month, with the most closely watched case a challenge by a Columbia, Missouri-based church that was denied a state grant.
In the April 19 oral argument, the justices will consider whether the Missouri Department of Natural Resources’ rejection of a grant application by Trinity Lutheran Church violated the U.S. Constitution.
The state’s Constitution says that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.” Consequently, the state turned down the church’s application for a grant to cover the cost of resurfacing a playground with recycled scrap-tire material.
“A categorical ban on religion here is merely an overbroad and unconstitutional restriction on the faithful’s ability to participate on equal terms in public life,” the church’s attorneys wrote.
As an appellate judge, Gorsuch has been sympathetic to religious liberty claims; siding, for instance, with the company Hobby Lobby’s effort to escape the Affordable Care Act’s so-called contraceptive mandate. These sympathies could be tested soon in a challenge from a self-described Colorado “cake artist” who was charged with discrimination for refusing a job request from a same-sex couple.
Gorsuch and his colleagues must also address a case challenging North Carolina’s voter identification law, key portions of which were struck down by an appellate court.