Is Supreme Court Justice Neil Gorsuch a Conservative—or a Wild Card? – 5280 – 5280 | The Denver Magazine

It was the ballot measure that earned Colorado the sobriquet “the Hate State.” Thirty years ago, Colorado voters passed Amendment 2, which would bar local governments from creating anti-discrimination protections for gay people.

Although most political observers had predicted that the measure would fail, members of the gay community and their allies had been quietly plotting a legal assault on the amendment. Before it went into effect, opponents were able to win an injunction to stay its enforcement until a lawsuit called Evans v. Romer could decide its constitutionality. Colorado’s conservative attorney general, Gale Norton, went all in and enlisted a handful of experts to attest to Amendment 2’s morality, giving a platform to psychological testimony that falsely alleged homosexuals were more likely than heterosexuals to be child molesters.

One of the state’s most prominent allies was John Finnis, a revered philosopher of law at England’s University of Oxford. Finnis, a bespectacled Australian, submitted an affidavit on behalf of Amendment 2. In it, he contended that gay relationships were “deeply shameful” to people engaged in “real marriage.” Finnis was a devout Catholic but maintained that his thinking was secular and backed by Plato and Aristotle, who, Finnis said, argued that “only conjugal activity is free from the shamefulness of instrumentalisation which is found in masturbation and in being masturbated or sodomized.” (Finnis would also equate gay sex with bestiality.)

Despite Finnis’ affidavit, the Denver District Court made the preliminary injunction on Amendment 2 permanent, and the Colorado Supreme Court upheld the decision. The state appealed, and in 1995, the U.S. Supreme Court heard the case, now called Romer v. Evans. Any hope Colorado might have had that SCOTUS would rule in Amendment 2’s favor, however, evaporated roughly one minute into oral arguments, when Justice Anthony Kennedy interrupted the state solicitor. “I’ve never seen a case like this,” said Kennedy, his voice registering disbelief. “Is there any precedent that you can cite to the court where we’ve upheld a law such as this?” Opponents of the measure immediately relaxed. Kennedy wrote the majority opinion, and Amendment 2 was quashed for good.

Although the decision in Romer v. Evans was narrow—it didn’t dissolve anti-sodomy laws or legalize same-sex marriage—it was the first instance of the federal high court purposefully protecting gay rights. It also marked the beginning of Kennedy’s defense of queer liberties. He may have been appointed by Republican President Ronald Reagan, but the California-born justice would go on to write majority opinions that overturned bans on gay sex and federal and state bans on same-sex marriage.

This month, the U.S. Supreme Court will once again hear a case concerning gay rights from the Centennial State: A Denver-area web designer wants to advertise that she won’t build wedding websites for queer couples, but the Colorado Anti-Discrimination Act won’t let her. Neither Finnis, who has largely stepped away from academia, nor Kennedy, who retired from the court in 2018, is likely to play a direct role in 303 Creative LLC v. Elenis. But their shared protégé, Supreme Court Justice Neil Gorsuch, will.

While Finnis was testifying in favor of Amendment 2, he was also mentoring Gorsuch at Oxford. Almost 20 years later, Gorsuch continued to hold his former adviser in high esteem, appearing as a speaker at the University of Notre Dame’s Finnis Conference in 2011. After his time at Oxford, Gorsuch worked under Kennedy at the Supreme Court. The two remained close enough that when Gorsuch was appointed to the U.S. Court of Appeals for the 10th Circuit in 2006, Kennedy traveled to Denver to swear him in.

So, when it comes to 303 Creative and future cases involving gay rights, which mentor will Gorsuch serve? His conservative record on the court indicates a Finnis-ian bent. However, in 2020, Gorsuch surprised many by departing from the Republican ranks in Bostock v. Clayton County. He not only agreed with the majority that employers can’t fire workers because they’re gay, but Gorsuch also wrote the opinion. Was Bostock a signal that the justice is willing to pick up Kennedy’s mantle as the current court’s most important—and perhaps only—conservative guardian of gay rights? Or was Gorsuch’s decision a rainbow-hued mirage that temporarily obscured his deep red leanings?

Neil Gorsuch comes from a long line of Denver lawyers, including his grandfather, his father, and, perhaps most consequentially, his mother. At 20, Anne Gorsuch Burford became the youngest woman to be admitted to the Colorado Bar Association. She was a Fulbright scholar in India and was elected to the Colorado House of Representatives in the 1970s. There, as part of a passionate group of small-government conservatives nicknamed the House Crazies, she was instrumental in eliminating the sales tax on food and the inheritance tax, according to Steve Durham, a fellow member of the Crazies. “She was probably, intellectually, the most capable legislator with whom I ever served,” Durham says. “She was extraordinarily intelligent, very articulate, and quite witty.”

Burford cut a glamorous figure in her fur coats, cigarette often in hand, but she was tough. The Rocky Mountain News wrote that “she could kick a bear to death with her bare feet.” Her zeal for small government caught the attention of Reagan, who in 1981 made Burford his first director of the Environmental Protection Agency (EPA). Burford quickly got to work gutting the place; during her tenure, she reduced the agency’s budget by 22 percent and was on pace to terminate 30 percent of the staff by the end of 1983. As a state representative, Burford had sued the EPA because the agency threatened to block Colorado’s access to federal grants until the state could control its auto emissions. As director, she worked with car manufacturers to loosen clean air restrictions.

But things soon turned sour: In 1982, Burford became entangled in controversy when a whistleblower accused the EPA of using its then new $1.6 billion Superfund program for political purposes. Congress subpoenaed agency documents, but, acting on the president’s orders, Burford refused to hand them over. The press labeled her the Ice Queen for her obstinacy. In truth, Burford wanted to comply with Congress’ request—she told Reagan aide James Baker, “I know you’ll think I’m just a bitchy female, but I think we have to turn over these documents”—but the White House wouldn’t relent. The House voted to hold Burford in contempt of Congress, and she resigned in March 1983.

“She was loyal to the president,” Durham says. However, in her 1986 book, Are You Tough Enough?, Burford described feeling like a scapegoat: “I was not the first to receive [Reagan’s] special brand of benevolent neglect, a form of conveniently looking the other way, while his staff continues to do some very dirty work.”

Burford, who died in 2004, also wrote in Are You Tough Enough? that her then 15-year-old son, Neil Gorsuch, didn’t understand why she resigned. “You didn’t do anything wrong. You only did what the president ordered. Why are you quitting? You raised me not to be a quitter. Why are you a quitter?” But Gorsuch didn’t nurse his grudge against the president or the Republican Party for long.

When Burford joined the EPA, Gorsuch moved from Denver to Washington, D.C., and enrolled in the elite Georgetown Preparatory School. “The two of us were huge fans of Reagan,” Michael Trent, a Georgetown classmate and the best man at Gorsuch’s wedding, told the New York Times in 2017. “And it was because of our family upbringings.” Gorsuch continued on the conservative track at Columbia University (writing editorials in support of the Reagan-backed, right-wing Contra rebels in Nicaragua) and at Harvard Law School (where he was a member of the Federalist Society, a conservative and libertarian legal association). He landed at Oxford in 1992 to study the philosophy of law.

There, Finnis supervised Gorsuch’s doctoral thesis, and the young man, living outside of the United States for the first time, remembers the experience warmly. “He was a very generous teacher, particularly generous with his red ink on my papers,” Gorsuch said during his 2017 Supreme Court confirmation hearing. “I remember sitting next to the fire in his Oxford office, like something out of Harry Potter.” Gorsuch’s dissertation, which he completed in 2004 and turned into a book, The Future of Assisted Suicide and Euthanasia, in 2009, concluded that, “the intentional taking of human life by private persons is always wrong.”

While that reasoning seems to reflect Finnis’ interpretation of natural law, Gorsuch is more difficult to pin down than his mentor on the issue of gay rights. In a 2005 article for the National Review, Gorsuch wrote that liberals had become “addicted” to bypassing lawmakers in their efforts to enact their social agenda, including same-sex marriage. Yet a number of gay friends and colleagues supported Gorsuch’s nomination to the Supreme Court.

At Gorsuch’s confirmation hearing, U.S. Senator Dick Durbin asked the judge directly about Finnis and the influence the Oxford professor had on Gorsuch’s views on the LGBTQ community. “Senator,” Gorsuch replied, “I have tried to treat each case and each person as a person—not a ‘this kind of person,’ not a ‘that kind of person.’ A person. Equal justice under law. It is a radical promise in the history of mankind.”

“Does that refer to sexual orientation as well?” Durbin asked.

“Senator,” Gorsuch said, “the Supreme Court of the United States has held that single-sex marriage is protected by the Constitution.”

The topic seemingly decided, Durbin pursued a new line of questioning.

After clerking at the Supreme Court, Gorsuch joined a private litigation firm in Washington, D.C., for a decade and then worked as a top aide in President George W. Bush’s Justice Department before returning to the Centennial State in 2006 as a judge on the U.S. Court of Appeals for the 10th Circuit, based in Denver. By all accounts, it was a happy homecoming.

Gorsuch bought a house in a private gated community outside Niwot with an unimpeded view of the foothills and a stable for the family’s horses; his two daughters would visit his home office with yellow baby chicks from the barn in tow. He taught a law ethics class at the University of Colorado Law School and, though raised Catholic, attended the progressive St. John’s Episcopal Church in Boulder, a denomination that welcomes, marries, and ordains members of the gay community.

The move to Colorado also put Gorsuch into closer contact with his beloved outdoors. Jamil Jaffer clerked for Gorsuch in 2006, and the judge welcomed the California native to the Centennial State by taking him and his co-clerk alpine sledding. They later went fly-fishing, and when Jaffer couldn’t catch a fish, Gorsuch hooked one for him—although he was kind enough to let his mentee reel it in. Jaffer did much better on the slopes, eventually working his way up to black diamond runs. “But I did pull my MCL trying to keep up with him,” Jaffer says.

Jaffer’s clerkship was just as intense. A clerk’s most important duty is to work with the judge on his or her opinions, and, like Finnis, Gorsuch was generous with red ink. “At the end of it,” Jaffer says, “I would not see a single word of my own writing.”

Inside the courtroom, both conservatives and progressives found Gorsuch to be intelligent and fair. In 2009, Denver Police Department (DPD) officers raided a house in the West Colfax neighborhood they suspected of being occupied by drug dealers and sex workers. The warrantless search turned up neither narcotics nor prostitutes. Instead, the DPD found members of the Martinez family, who’d recently moved in, and the cops arrested two of the brothers for allegedly assaulting police officers. The brothers were ultimately acquitted by a jury and sued the DPD, winning a $1.8 million judgment, which the city appealed to the 10th Circuit.

“Gorsuch looked at the Denver lawyers,” says David Lane, a Denver civil rights lawyer who represented the Martinezes, “and said, ‘It would behoove you to settle this case.’ ” The city took Gorsuch’s advice and settled with the family for $1.6 million. Lane appeared before Gorsuch on the 10th Circuit a handful of times and didn’t believe him to be overly partisan.

If Gorsuch is a zealot about anything, it’s textualism. Starting in the 20th century, legal thinking began to be transformed by legal realism—the idea that in addition to the written law, jurists should take public policy and the social interest into account when crafting opinions. Then Antonin Scalia came along. Scalia was appointed by Reagan to the Supreme Court in 1986 and became a right-wing star for his scathing opinions, stubbornness, and fierce adherence to the strict letter of the Constitution.

Scalia preached the gospel of modern textualism, believing that the primary focus of interpretation should be the statute in question. He even refused to sign opinions that relied on ancillary research such as legislative history—all the documents that an elected body creates in the process of passing a law, materials that might shed light on the lawmakers’ intent. To Scalia, the Constitution was “not living but dead.” “[Supreme Court Justice] Elena Kagan famously said, ‘We are all textualists now,’ ” says James Romoser, the editor of SCOTUSblog. “So Scalia’s influence runs through the entire Supreme Court, both the conservative wing and the liberal wing.”

It also trickled down to many lower courts, including the 10th Circuit, where, in a 2016 opinion, Gorsuch wrote, “Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams.” That same year, Scalia died while on vacation in Texas. Gorsuch received the news on his cell phone while on the slopes and skied to the base of the mountain with tears blurring his vision.

In 2002, while still working in private practice, Gorsuch published an editorial about the politicization of the judicial confirmation process. As evidence, he pointed to the case of Merrick Garland, then a judge on the D.C. Court of Appeals. After espousing all of Garland’s qualifications, Gorsuch recalled that a few years earlier, the Democrat’s confirmation to the D.C. Court had been held up for 18 months by a Republican-controlled Congress. “So much for promoting excellence in today’s confirmation process,” Gorsuch wrote.

Fourteen years later, President Barack Obama nominated Garland to succeed Scalia, but a Republican-controlled Congress refused to confirm him—and the next president, Donald Trump, nominated Neil Gorsuch to the country’s highest court. One of Gorsuch’s first calls after receiving the news was to Garland, but Gorsuch refused to discuss the ethics of the situation during his confirmation hearings because he said judges shouldn’t become entangled in politics.

Gorsuch’s tenure on the Supreme Court didn’t start especially smoothly. During his first oral argument, in April 2017, he held that a complicated case could be easily decided by following the text of the law, which struck some—his fellow justices included, reportedly—as a little sanctimonious. His relationship with the other justices also became news in January 2022, when NPR reported that Gorsuch refused to don a mask despite Chief Justice John Roberts asking all the justices to wear them to protect Sonia Sotomayor, who has diabetes. (In a joint statement, Gorsuch and Sotomayor said they are “warm colleagues and friends.”)

“Contrary to those stories,” says Jaffer, who returned to clerk for Gorsuch in D.C. and now teaches law at George Mason University, “the justices spend a lot of time working together outside of the court, including public events talking about the importance of civil debate and discourse.” Gorsuch also teaches at George Mason, and in summer 2021, Kagan joined him during the school’s national security summer program in Iceland.

Then there was the matter of Gorsuch’s writing. Jurists can quote Scalia’s most famous flourishes, such as, “This wolf comes as a wolf,” from memory. But while Gorsuch had been hailed as a skillful writer on the 10th Circuit, the legal world soon started lampooning his Supreme Court opinions. His literary crimes included dropping in quotes from arcane philosophers (see: G.K. Chesterton) and overusing alliteration, but it was his penchant for explaining the obvious that made Gorsuch into a meme. #GorsuchStyle became a game on Twitter, with people taking celebrated SCOTUS lines and describing them to death. Daniel Epps, a law professor at Washington University in St. Louis, transformed Scalia’s phrase into, “This wolf comes as a wolf. That is, the wolf, being dangerous, is coming to us in a way that we can tell it is a wolf, i.e., something dangerous, and not something that isn’t dangerous.”

If the quality of Gorsuch’s prose was a surprise, the substance of its meaning was not. He has consistently sided with the other Republican-appointed justices, who, after the additions of Brett Kavanaugh and Amy Coney Barrett, hold a six to three supermajority over Democrat-appointed judges. Truly his mother’s son, Gorsuch seems particularly wary of the administrative state—those executive branch agencies, like the EPA, charged with regulating industries.

This past term, for example, he joined the conservative bloc in West Virginia v. EPA, declaring the agency couldn’t determine emissions standards across the energy sector because Congress didn’t expressly say it could. In other words, the EPA can’t make its own rules. “Admittedly, lawmaking under our Constitution can be difficult,” Gorsuch wrote in a concurrence. “But that is nothing particular to our time nor any accident. The framers believed that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty.”

The liberal dissenters on the court pointed out that not limiting power plant emissions could pose a serious threat to humankind, but to Gorsuch, that’s not a justice’s concern. Congress makes statutes. The judicial branch simply enforces them, guided by the text.

But different words mean very different things to different judges—even conservative ones supposedly guided by the same textualism. The case of Bostock v. Clayton County involved three people who had been fired either for being gay or transgender; they sued under Title VII of the Civil Rights Act of 1964, and Gorsuch surprised many by agreeing with them. The statute, after all, expressly forbids discrimination based on sex, and Bostock, a man attracted to men, would not have been fired if he were a woman attracted to men. Textualism 101. Case closed.

Except Kavanaugh, Clarence Thomas, and Samuel Alito didn’t read the law that way. What ensued in the opinion and dissents became a battle over Scalia’s legacy. “Do not simply split statutory phrases into their component words, look up each in a dictionary, and then mechanically put them together again, as the majority opinion today mistakenly does,” Kavanaugh wrote in his dissent. “To reiterate Justice Scalia’s caution, that approach misses the forest for the trees.” In the parlance of the Supreme Court, these were fighting words.

“Conservative academics have raised questions about Bostock,” says Tara Grove, a University of Texas School of Law professor and a textualism expert, who believes Gorsuch’s interpretation of Bostock was correct—at least in regard to adhering to formalistic textualism. “Judges are inevitably affected by their backgrounds and jurisprudential preferences.”

During the 2021-’22 session, Gorsuch was less inclined to agree with his conservative colleagues: He was in the majority on 75 percent of judgments, according to SCOTUSblog, the lowest number of any Republican-appointed justice. (Roberts and Kavanaugh scored the highest marks, at 95 percent.) “He’s a very reliable conservative,” says SCOTUSblog’s Romoser, “but certainly not all the time. He does have unexpected views.”

Anthony Kennedy retired from the U.S. Supreme Court in 2018. A year later, the National Constitution Center gave him its Liberty Medal, which honors individuals who “strive to secure the blessings of liberty to people around the globe.” The center asked Gorsuch to introduce his former mentor during the awards ceremony.

Standing behind a podium decorated in stars and stripes and wearing a dark suit and a blue tie, Gorsuch described the kindness of his mentor. Gorsuch had not technically clerked for Kennedy; after he returned from Oxford, Gorsuch served under retired Supreme Court Justice Byron White, also a Coloradan. But Kennedy adopted Gorsuch into his inner circle, inviting him to his home along with other clerks to debate the court’s docket on a whiteboard. Later, upon rising to the 10th Circuit, Gorsuch asked for advice. “Listen,” Kennedy replied. Kennedy and his wife helped the Gorsuches find a house when they moved to D.C.

When Kennedy delivered his remarks at the Constitution Center, he noted that he considered the ancient Greeks—in particular Aristotle, whom Finnis had cited in his Amendment 2 affidavit—to be his heroes. The philosopher, it seems, had ranked democracy as the worst form of government, and Kennedy had spent a summer investigating why. “My conclusion was that he thought democracy did not have the capacity to mature,” Kennedy said. “It’s our destiny to prove him wrong.”

Gorsuch and Kennedy are bound by more than personal history. They also share geographical roots: Since 1981, only three justices from the western United States—Gorsuch, Kennedy, and Sandra Day O’Connor—have been appointed to the country’s highest bench. “No less an authority than Justice Scalia observed this lack of representation when he wrote in dissent that the court has ‘not a single genuine Westerner,’ ” U.S. Senator Michael Bennet of Colorado said during Gorsuch’s confirmation hearing. (In a parenthetical, Scalia added, “California does not count.”)

Kennedy grew up in Sacramento in the 1940s and ’50s, and many attribute the state’s relative tolerance at the time to the future justice’s defense of queer rights—just as many credit Gorsuch’s protection of Native American rights to his time spent in Colorado. During his decade on the 10th Circuit, Gorsuch heard 60 cases concerning Native law, according to the National Congress of American Indians, and he wrote 18 opinions. Many of his decisions favored Indigenous peoples, and that trend has continued during his time on the Supreme Court.

In 2020, Gorsuch sided with the four liberals then on the bench in McGirt v. Oklahoma, a landmark case that ruled that most of eastern Oklahoma, including Tulsa, remained “Indian Country” and so state authorities had no right to prosecute Native Americans for crimes committed there. During this past session, the Court heard three complaints involving Native law. Gorsuch ruled for Native American interests in all three, including Oklahoma v. Castro-Huerta, which held that state authorities could prosecute certain crimes on Indian land. “Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee,” Gorsuch wrote in his dissent, “today’s court accedes to another’s.”

“There’s no doubt that he brings a Western mentality and philosophy to the court,” Jaffer says. “What do I mean by that? It’s clear that individual liberty is something he believes is clearly captured in the Constitution.” Just how broadly Gorsuch applies that belief will be on display this month, when the Supreme Court hears oral arguments in 303 Creative v. Elenis.

The owner of Littleton-based 303 Creative, Lorie Smith, is a graphic designer who says her faith won’t allow her to create websites for same-sex weddings. The court ruled on a similar case in 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, when the justices ruled the Lakewood bakery didn’t have to make a wedding cake for a gay customer as an expression of free speech, even though the Colorado Anti-Discrimination Act (CADA) prohibits refusing service because of sexual orientation. Smith is challenging a different part of the same law: She would like to add a note to her website saying 303 Creative won’t design websites for gay weddings, but CADA forbids advertising discrimination.

303 Creative might not be the best bellwether for Gorsuch’s views on gay rights. After all, even Kennedy voted in favor of Masterpiece Cakeshop. But the 2018 ruling was narrow: The opinion, written by Kennedy, only affected Masterpiece’s specific complaint. “Kennedy did believe in First Amendment religious freedom exemptions,” says Jason Pierceson, a political science professor at the University of Illinois Springfield who focuses on legal issues related to LGBTQ rights. “But not as a way to gut anti-discrimination protections.”

There are indications that Gorsuch might place a greater value on religion. In his Bostock opinion, the justice went out of his way to write that the case didn’t involve faith and that his opinion might have been different if it had. “I think most observers would expect Gorsuch to be on the side [of], or at least be inclined to side with, the website designer,” Romoser says. Without Kennedy, Pierceson believes the Supreme Court could go much broader in 303 Creative, creating space for religious freedom in discrimination laws. That probably wouldn’t mean racists would be free to post “Whites Only” signs. Christian adoption agencies, however, might be able to turn away Jewish parents.

If the majority of the court decides in favor of Smith, 303 Creative could create a path to undermine queer rights. Just as alarming to gay rights advocates: the future of Obergefell v. Hodges, the 2015 ruling that upheld that same-sex marriage is protected under the Constitution. When the conservative justices, Gorsuch included, overruled Roe v. Wade in June, the majority opinion held that nothing in the decision should threaten any precedent other than abortion. “I think that was a bit of an empty promise by the court,” Pierceson says. “Before Dobbs, I would have said marriage equality is quite secure as a constitutional matter, but now I am much more skeptical. I think there are at least five votes to overturn Obergefell.” Would Gorsuch be one of them?

The justice would likely say that the letter of the law will decide the outcome. But reality says background and principles—and, yes, politics—will play a part, too. Gorsuch seems stuck between worlds: his Catholic past and his Episcopalian present. He advocated for Garland and then stepped over him on his way to the Supreme Court. He counts both a bigot and a champion of gay rights among his mentors.

Or maybe Gorsuch will be guided by the testimony he gave during his confirmation hearing, when then U.S. Senator Al Franken of Minnesota suggested Gorsuch would do the president’s bidding: “I do not appreciate when people characterize me, as I am sure you do not appreciate it when people characterize you,” Gorsuch said, momentarily letting frustration bubble through his composure. “I like to speak for myself. I am a judge. I am my own man.”

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