While it is theoretically an apolitical institution, over the course of President Donald Trump’s second term, the Supreme Court has made its politicization blatant. According to Slate, the evolution of Justice Neil Gorsuch highlights the increasingly far-right nature of the nation’s highest court.
As Slate Executive Editor Susan Matthews explains, “Justices have a vested interest in telling all of us, Oh, what we’re doing is law. We’re just reading the law. There’s no politics. There’s nothing to see here.” But what she finds uniquely interesting about Gorsuch, however, is “the way he got onto the court itself is the best, most obvious demonstration that we are not ‘just reading the law’ here. Politics is informing every single thing that happens.” Matthews is referring to how Gorsuch was seated in the early days of Trump only after the Republicans blocked the appointment of Obama-nominee Merrick Garland. “I think Gorsuch was in fact the perfect person to take Merrick Garland’s seat because he’s someone who is going to stand up there, with an absolutely straight face, saying, There is nothing to see here,” says Matthews. “They say that there’s no politics here, but there’s obviously politics here.”
Initially, Gorsuch had many believing that even if his appointment was political, his decisions came from his own beliefs. But according to Matthews, “This term in particular shattered that illusion for me. With the trans sports cases and with the birthright citizenship case, it’s hard to say that he hasn’t lost his way and is following politics in a way that is so legible that there’s no argument anymore.”
Matthews raises a clear example of how Gorsuch’s once-textualist view of the Constitution has been corrupted by MAGA politics. In the 2020 case Bostock v. Clayton County, which dealt with whether a person could be fired for being gay or trans, “Gorsuch established this reputation as kind of a renegade” when he took a stance against discrimination. As Matthews explains, “Gorsuch, in a very textualist, ‘Let’s just read the words on the page’ way, made this argument: If they’re being discriminated against because it is a man who is in a relationship with a man, and if a person is being discriminated against because it is somebody whose gender identity does not align with their sex given at birth, that is very clearly discrimination.” Said Matthews, “He ruled in favor of the trans and gay workers. It was a revolutionary ruling at the time.”
But then in July, Gorsuch sided with his fellow conservative justices in an opinion that allows states to ban trans athletes from sports. As Slate contributor Mark Joseph Stern explains, on one hand, Gorsuch continues to assert that he upholds Bostock, but at the same time, he has decided to “weirdly limit that reasoning to this one narrow context and come up with a different definition of discrimination.” According to Matthews, “I think that this perfectly aligns with the political message on the ground as well.”
Then came the recent Supreme Court decision on birthright citizenship, which was ultimately upheld in a highly divided opinion. As Stern explains, “I really felt that he was going to vote to strike down Donald Trump’s executive order, which would have prohibited birthright citizenship for the children of undocumented immigrants who are born here, and also the children of temporary visitors who are born here. This was a really, really radical argument that the administration presented. It rejected well over 120 years of precedent and consistent practice by the federal government. And yet the administration lost only by a 5–4 vote on the constitutional question. Four justices would have upheld at least part of the order under the Constitution. And Gorsuch signed on to Justice Clarence Thomas’ dissent.”
“It seemed like such a perfect case for him to come in and say, No, no, no, I’m going to go against Trump here, and I’m going to get all the accolades for doing so, and I’m going to get this moment of being the defender of the Constitution,” says Matthews. “That is what I was counting on… I just thought that the desire to be framed as the reasonable one would win out. It’s scary it didn’t and that instead he went in this direction.”
“I think Gorsuch is highly influenced and swayed by Thomas and by Justice Samuel Alito, by his senior conservative colleagues, when they really bear down and make these historical arguments that might sound plausible if you’re reading them with absolutely no background knowledge and don’t do a site check but that absolutely fall apart upon any meaningful scrutiny,” concludes Stern. “This is Gorsuch the bad historian, in part, and I think he really did see a lot to like about the theory that Thomas cooked up… Quite often, white supremacists, nativists, people who didn’t want the citizenship clause to mean what it said came up with this conspiracy theory about what it really meant, and Thomas adopted that. And I think Gorsuch liked that and was like, Sure, Clarence. Makes sense to me.”
