The Senate Judiciary Committee recently concluded its confirmation hearing for President Donald Trump’s Supreme Court nominee Neil Gorsuch, whose confirmation vote is scheduled for April 3. If confirmed, Judge Gorsuch will likely have a significant impact on future Supreme Court cases and the key constitutional questions of our time. We sat down with Rutgers School of Public Affairs and Administration (SPAA) Associate Professor Stephanie Newbold to understand current constitutional questions and dynamics with regard to both Gorsuch’s potential confirmation and the Trump administration’s policies. Newbold specializes in the intellectual history of public administration, democratic-constitutionalism, and the intersection between the American Constitution and the administrative state.
What would Neil Gorsuch’s confirmation mean for the Supreme Court?
In comparison to Merrick Garland who was President Barack Obama’s nominee to the Court after Justice Antonin Scalia died, Judge Neil Gorsuch has developed a more conservative interpretation of the Constitution. Like Justice Scalia, Gorsuch’s jurisprudence is based on originalism, which is a judicial philosophy that requires judges to interpret the Constitution according to the original intent of those who drafted and amended the document.
Judge Gorsuch currently serves on the U.S. Court of Appeals for the 10th Circuit. In 2014, the U.S. Supreme Court upheld his decision in Burwell v. Hobby Lobby Stores, Inc., which affirmed the constitutional rights of business owners to deny coverage of certain types of contraceptives to women under their health care plans, as required by the Affordable Care Act, on the basis of their religious objections to abortion. Judge Gorsuch’s opinion that religious liberty claims should trump reproductive health care rights for women has caused a great deal of hesitation and concern among Democrats and advocates of women’s health and reproductive choice. Opponents to President Trump’s nominee view Gorsuch’s jurisprudence in this area of the law as a strong indicator that he is not supportive of Roe v. Wade and Planned Parenthood v. Casey, the two Supreme Court cases that constitutionally protect a woman’s right to an abortion. During the confirmation hearings, we saw increased focus by Senate Democrats on Gorsuch’s legal opinions concerning gun rights, campaign finance reform, and constitutional federalism.
Can you explain the process for a case making it to the Supreme Court?
The vast majority of cases the Supreme Court hears each term are conflicts between the Circuit Courts. When the Courts of Appeals offer conflicting views of the same law, the Supreme Court wants to clarify the law so that it can be applied uniformly across the country.
Each year, the Supreme Court receives approximately 8,000 petitions for certiorari, or petitions for the review of a case. Of these 8,000 or so requests, only about 80 to 100, or about 1%, are accepted for review and decision, so less than one percent of the cases that are appealed to the Court each year are reviewed.
Once a party receives a final decision in the lower court, it can appeal to the Supreme Court by filing a petition for writ of certiorari. A petition must be filed with the clerk of the Court within 90 days, which may be extended if requested. Opponents of review must submit their objections within 30 days after the case has been added to the docket. Once the Clerk’s Office receives all of the required documents, a law clerk writes a brief describing the case. Then the justices vote on whether or not to grant or deny certiorari. The Court operates under the Rule of Four principle. Four out of nine justices need to agree to hear the case in order for the Court to grant certiorari. If at least four justices do not agree to hear a case, the decision of the lower court stands as final and the case is over. When the Supreme Court grants certiorari and agrees to hear a case, the parties submit briefs outlining or summarizing their positions, relevant facts, and the relevant law and precedents in question. After the briefs are filed, the clerk schedules the case for oral argument.
The Court hears oral arguments from the first Monday in October through the middle of April and then decides the cases by the end of June. In most cases, each side has 30 minutes to present its case, although the Chief Justice can add time to each case if necessary and he can divide time in order for amicus curiae to participate in oral argument. Oral argument is free and open to the public.
The Court’s general practice to render an opinion on every case argued by the end of the term is a practice that distinguishes the Supreme Court of the United States from all other supreme courts and constitutional courts around the world.
What do you consider to be the most pressing constitutional questions facing our nation at the moment?
The answer will depend on whom you ask. Generally, however, there are some key constitutional questions and issues that the Court will likely have to address in the near future. Beginning with the George W. Bush administration moving forward, we need greater clarity as to where the executive powers of the president end, particularly in matters concerning international conflict and war. As questions grow concerning the possibility of President Trump and his supporters’ interacting with the Russian government prior to the last election, that situation could create serious constitutional questions and raise noteworthy legal concerns. On the domestic policy side of running the nation, we are seeing increased interest in how the government chooses to engage policies and provisions that govern reproductive health and access to a variety of choices concerning reproductive options. With the demise of Section 4 and 5 of the Voting Rights Act, there are significant constitutional concerns regarding disparate treatment of minorities in the voting process. These are especially prevalent in states and localities that have a history of discriminatory voting practices. The increase in what Justice Ruth Bader Ginsburg calls “second generation discriminatory practice” will undoubtedly raise important constitutional questions that the nation as a whole will soon have to address. Finally, the administration’s attempts to reform immigration policy and practice raises both constitutional questions and moral concerns about how the country is policing and enforcing its laws with regard to legal and illegal immigrants residing in the United States.
As you said, there’s some concern regarding women’s rights, especially in terms of the administration’s opposition to abortion. What would have to happen for Roe v. Wade to be overturned?
The Supreme Court has protected a woman’s right to abortion in two key cases: Roe v. Wade and Planned Parenthood v. Casey. Both upheld that the Fourth Amendment provides a constitutional right to privacy. This interpretive definition, according to the Court’s majority, affords American women the constitutional right to terminate a pregnancy within the first trimester. In order for the Court to overturn these precedents, a case would have to be brought to the Court challenging the constitutionality of these decisions. If that were to happen, at least five justices would have to agree to overturn the precedent established in each of these cases.
Are there any current aspects of the Constitution that the Trump Administration has signaled that it wants to change?
I do not know if there are parts of the Constitution that the Trump Administration wants to change, but there are a number of policies and social welfare programs that have been firmly established in the United States, particularly Medicare, Medicaid, and parts of the Affordable Care Act, which expand Medicaid funding to the states, that are in serious jeopardy in terms of resource allocation. In the administration’s proposed budget, there is strong opposition to public services that help poor, aging, and disabled populations. This could potentially raise due process concerns in the future.
What is the process to change the Constitution?
Article Five of the Constitution outlines the constitutional amendment process. The Constitution allows for either Congress or the states to propose an amendment to the Constitution. Both Houses of Congress must propose the amendment with a two-thirds vote. If the proposed amendment comes from the states, two-thirds of the state legislatures must call on Congress to hold a constitutional convention. Regardless if the amendment is proposed in Congress or through the states, three-fourths of the state legislatures must approve the amendment proposed by Congress or three-fourths of the states must approve the amendment through ratifying conventions.