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Thomas, the consistent originalist, seems to have found a fellow traveler in his new colleague.
The Republican gamble to stiff-arm Merrick Garland and hold open Justice Antonin Scalia’s seat appears to have hit the jackpot. In his abbreviated first year on the Supreme Court, Justice Neil Gorsuch has lived up to supporters’ greatest hopes and critics’ worst fears.
The term that ended this week revealed that Justice Gorsuch is no Scalia doppelganger. The new justice has shown greater sensitivity toward individual liberties than his predecessor, who wrote a controversial 1990 decision permitting states to burden free exercise of religion with general prohibitions, including criminal laws.
Justice Gorsuch joined the majority in Trinity Lutheran v. Comer, which struck down Missouri’s exclusion of churches from a state funding program for playgrounds. But he refused to accept the distinction suggested by Chief Justice John Roberts, who wrote the court’s opinion, between religious status and activity.
“Is it a religious group that built the playground?” Justice Gorsuch asked in a concurrence. “Or did a group build the playground so it might be used to advance a religious mission?” The majority’s distinction, Justice Gorsuch wrote, made no sense under the Free Exercise Clause, which “guarantees the free exercise of religion, not just the right to inward belief (or status).”
Justice Gorsuch’s arrival highlights the ascension of Justice Clarence Thomas, also frequently—and unfairly—caricatured as a Scalia clone. Astute court watchers have long understood that Justice Thomas was more conservative and intellectually aggressive than Scalia, who once called himself a “fainthearted originalist.” Scalia sometimes abandoned the constitutional text when it conflicted with traditional values or established precedent.
Justice Thomas is a more consistent originalist, willing to reject longstanding doctrine and practice when they flout the Constitution’s original meaning. He might have found a fellow traveler in Justice Gorsuch.
Reacting to the excesses of the Warren Court, Scalia wanted to limit judicial discretion. But he also sought to restore fidelity to the Constitution’s original meaning. While the latter impulse demanded a narrowing of the court’s Commerce Clause jurisprudence, which has justified the vast expansion of the administrative state, the former sometimes caused Scalia to flinch. In 2005’s Gonzalez v. Raich, Scalia concluded that Congress could regulate the growing of marijuana for personal use. Justice Thomas voted to bar the application of federal drug laws under these circumstances.
Similarly, while Scalia wrote the seminal opinion recognizing an individual right to bear arms, he also countenanced state regulation of gun possession, thereby treating the Second Amendment as a second-class right. This week the court declined to hear an appeal in Peruta v. California, upholding the Golden State’s virtual ban on concealed-carry permits. “The Framers made a clear choice,” Justice Thomas wrote in a dissent Justice Gorsuch joined. “They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.”
In the much discussed “travel ban” decision, Justice Thomas authored a concurring opinion, joined by Justices Alito and Gorsuch, arguing that immigration is properly the domain of the political branches, not the courts. Trump v. International Refugee Assistance Project mostly resurrected the administration’s 90-day moratorium on entry by nationals of six countries, pending a full high-court review in the fall. The other six justices, however, left the door open to challenges by aliens who have some attachment to the United States.
Justice Gorsuch’s arrival has underscored the court’s fault lines. Conservatives have long criticized Justice Anthony Kennedy’s penchant for conjuring constitutional rights out of whole cloth, from abortion to gay marriage. Chief Justice Roberts likewise earned the ire of conservatives with his 2012 vote to uphold ObamaCare’s individual mandate as a tax. In prizing consensus, Chief Justice Roberts forgets that great justices have sacrificed it for constitutional fidelity. Earl Warren regularly joined 5-4 or 6-3 majorities to apply the Bill of Rights and Reconstruction amendments more vigorously to the states. Oliver Wendell Holmes, perhaps the most influential justice of the 20th century, was known as “the great dissenter” for a reason. Consensus comes at a cost.
Justice Gorsuch’s appointment is President Trump’s greatest accomplishment to date. His early decisions have solidified a three-justice conservative bloc. A resurgent conservative wing exposes the high court’s directionless middle, occupied by Justice Kennedy and to a lesser extent Chief Justice Roberts.
Justice Gorsuch’s noteworthy debut will prompt an even fiercer fight over the next vacancy, almost certain to occur during President Trump’s term. In replacing Scalia, Justice Gorsuch may not have changed the balance of the Court on the most divisive constitutional issues. But his commitment to the original Constitution sets the stage for a noisy confirmation battle
Mr. Prakash is a law professor at the University of Virginia and a senior fellow at the Miller Center. Mr. Yoo is a law professor at the University of California, Berkeley and a visiting scholar at the American Enterprise Institute.
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