Students, faculty and community members gathered to hear a forum on the U.S. Supreme Court under U.S. President Donald Trump Sept. 15, part of the two-day 2017 Supreme Court Preview held annually at the Marshall-Wythe School of Law, which provides law students an opportunity to earn six CLE credits.
Trump and the Court,” moderated by Adam Liptak, the Supreme Court correspondent for The New York Times, featured three panelists from different backgrounds in the legal field who discussed how the Court would be affected under Trump. The panel discussed the arrival of a new justice, Neil Gorsuch, who replaced the late Justice Antonin Scalia and the potential resignation of Justice Anthony Kennedy looming in the future.
“Trump and the Court,” moderated by Adam Liptak, the Supreme Court correspondent for The New York Times, featured three panelists from different backgrounds in the legal field who discussed how the Court would be affected under Trump. The panel discussed the arrival of a new justice, Neil Gorsuch, who replaced the late Justice Antonin Scalia and the potential resignation of Justice Anthony Kennedy looming in the future.
Donald Verrilli, panelist and partner of Munger, Tolles & Olson, acknowledged there are similarities between Gorsuch and Scalia.
“You can think about it as Justice Gorsuch basically replacing Justice Scalia,” Verrilli said. “How different are they really? Both [are] very committed to textualism as a matter of statutory interpretation. … [Gorsuch is] very committed to originalism as a method of constitutional interpretation, as Justice Scalia was and generally a judicial conservative, as Justice Scalia was.”
Verrilli noted, however, that between the two judges, “there’s potential for differences in certain places.”
“The one everyone is focused on … is the relationship between the judiciary and the administrative state,” Verrilli said. “That relationship was changing anyway. I think it was pretty evident to people who were paying careful attention that the whole idea of the Chevron Doctrine was eroding and in fact disappearing before Justice Gorsuch arrived. You almost never see it cited now. … That trend seems to be likely to really solidify because Justice Scalia, at least in theory until the end of his time, was really a believer in that doctrine.”
Verrilli also said that the arrival of Gorsuch could affect the Supreme Court’s overall functioning as a group, with Gorsuch’s assertiveness playing a key role in altering the present group dynamic.
“[Gorsuch] is being very assertive from a very early time,” Verrilli said. “But he didn’t come to the bench, at this point in his career, with the same esteem that Justice Scalia attained eventually. … I’m not sure that you could just step into that role as a new justice without upsetting the dynamic.”
Kannon Shanmugam, panelist and partner of Williams & Connolly, agreed with Verrilli, acknowledging both the new justice’s level of assertiveness and his activity level compared to other first-year justices as factors in the changing dynamic.
“From the starting gun, he was incredibly active, incredibly forthright in expressing his views in oral argument, and that was reflected in, I think, a noticeably significant number of separate opinions coming out of that sitting,” Shanmugam said. “His level of activity on the Court really contrasted with that of say, Justice [Samuel] Alito, who really for his first year on the court was relatively quiet at oral argument.”
Co-Director of Stanford Law School’s Supreme Court Litigation Clinic Pamela Karlan said she believed that more would account for Gorsuch’s impact on the interpersonal dynamic of the court than just his activity level and assertiveness.
“I think the most extraordinary thing was his separate opinion in Pavan [v. Smith],” Karlan said.
In Pavan v. Smith — a 2017 case which reversed an Arkansas State Supreme Court holding that discriminated against same-sex couples in the one partner’s status as a co-parent on birth certificates — Gorsuch wrote a dissenting opinion alongside Alito and Justice Clarence Thomas.
Karlan said that the new judge’s younger age would solidify his legacy as a Trump appointee.
He’s 40 years younger, which means that he’s going to be around on the Supreme Court long after Donald Trump is gone, even if Donald Trump makes it through four years,” Karlan said. “[Gorsuch is] a different kind of Conservative because he came up in a different stage of the Conservative legal movement.”
“He’s 40 years younger, which means that he’s going to be around on the Supreme Court long after Donald Trump is gone, even if Donald Trump makes it through four years,” Karlan said. “[Gorsuch is] a different kind of Conservative because he came up in a different stage of the Conservative legal movement.”
During the past term, Verrilli said that the justices were intent on finding common ground. The most notable of these instances, according to Verrilli, was during the Trinity Lutheran v. Comer case, in which Chief Justice John Roberts, who wrote the majority opinion, included Justice Elena Kagan and Justice Stephen Breyer to further that effort. However, Verrilli said he believes that Gorsuch made it apparent that he would not partake in the effort to find common ground.
“One of the very first things that Justice Gorsuch did was say, ‘No, I’m not doing that,’ on what was probably the most important case of the term,” Verrilli said. “That sure seems significant to me.”
Liptak and the panelists discussed how the Court would be impacted if another nomination would occur to fill Kennedy’s seat and what precedents were at risk.
“Affirmative action is at risk,” Karlan said. “Abortion is at risk. Not because it would overturn Roe v. Wade itself directly but because they would whittle it down to a doorstop. You’d never see any burden that was undue.”