Gorsuch Sworn in to High Court; At Least One Education Case Awaits Him

By Mark Walsh — April 07, 2017 4 min read
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[Updated: Monday, April 10, 1:20 p.m.]

Neil M. Gorsuch was sworn in Monday as the 113th justice of the U.S. Supreme Court, promising “to be a faithful servant to the Constitution and laws of this great nation.”

Gorsuch, 49, took his constitutional oath from Chief Justice John G. Roberts Jr. in a small private ceremony at the court, then the judicial oath from Justice Anthony M. Kennedy, for whom he had served as a law clerk, in a ceremony in the Rose Garden at the White House.

President Donald Trump spoke first, saying, “I’ve always heard that the most important thing that a president of the United States does is appoint people, hopefully great people like this appointment, to the United States Supreme Court, and I can say this is a great honor. And I got it done in the first 100 days. You think that’s easy?”

Gorsuch said, “To the American people, I am humbled by the trust placed in me today. I will never forget that to whom much is given, much will be expected.”

Besides Roberts and Kennedy, all other members of the current court were present at the Rose Garden ceremony, as was Gorsuch family members including his wife, Louise, and daughters, Emma and Belinda. Maureen Scalia, the widow of the late Justice Antonin Scalia, was also present.

The Senate on Friday confirmed Gorsuch to the high court, one day after a bitter battle in which Republicans changed the rules of their chamber to end filibusters for high court nominees.

Gorsuch is joining the court in time to participate in April arguments that include a case with potentially major implications for religion and education. The new justice also could cast potentially deciding votes in education issues expected to come to the court in the near future, including on the rights of public-employee unions and transgender students.

The Senate voted 54 to 45 to approve Gorsuch, who has served on the U.S. Court of Appeals for the 10th Circuit, in Denver, for the last 11 years. He is President Donald Trump’s nominee to succeed the late Justice Antonin Scalia, who died Feb. 13, 2016, and whose seat has been vacant amid the refusal last year by Republicans to consider President Barack Obama’s nominee, Judge Merrick B. Garland. (Three Democrats joined 51 Republicans in voting “aye"—Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia.)

During his confirmation hearing last month and in floor debate this week, Democrats criticized Gorsuch as having a record that was insensitive to the powerless, including students with disabilities. They attacked him for a 2008 appeals court decision he wrote that went against a student with autism because the boy’s school district had provided a special education that met a standard that was “merely more than de minimis.”

The Supreme Court issued a decision on March 20, during Gorsuch’s confirmation hearing, in another special education case that expressly rejected the standard that the nominee had embraced, giving Democrats more fodder against him.

Republicans defended the 2008 decision, saying Gorsuch was following 10th Circuit precedent.

Aside from that battle, and a skirmish over whether Gorsuch fully embraced the result of the Supreme Court’s landmark 1954 decision against race segregation in the schools, in Brown v. Board of Education of Topeka, Kan., the hearings revealed relatively little about Gorsuch’s views on legal issues in education.

But Gorsuch will soon have an opportunity to express his views in a case being watched closely by educators. In Trinity Lutheran Church of Columbia v. Comer (Case No. 15-577), the justices will hear the appeal of a Lutheran church and preschool in Missouri that was denied a grant from a state program to use recycled tires to build safer playgrounds.

State officials cited the Missouri constitution’s prohibition against providing any money, “directly or indirectly, in aid of any church, sect, or denomination of religion.” Similar language is present in the constitutions of some three dozen states, and if the court decides this case broadly, such as by ruling that these amendments interfere with First Amendment free-exercise-of-religion rights of churches and religious groups, that would have major implications for state private school voucher and other programs.

The court granted review of the Trinity Lutheran case in January 2016, when Scalia was still alive. The court repeatedly put off oral arguments in the case until scheduling it during the last argument session of its term. There is widespread speculation that the eight current justices believe, based on their preliminary discussions when they granted the case, that they are equally divided and were awaiting a ninth member.

Gorsuch is now expected to be on the Supreme Court bench when the court takes up that case on April 19. Soon after the confirmation vote, the Supreme Court announced that Gorsuch would be administered his constitutional oath privately at the court on Monday, and his judicial oath at a White House ceremony later that day. A formal investiture ceremony will be held at the court at a later date.

PHOTO: President Donald Trump watches as U.S. Supreme Court Justice Anthony M. Kennedy administers the judicial oath to Judge Neil Gorsuch in the Rose Garden of the White House on April 10. Holding the Bible is Gorsuch’s wife, Marie Louise Gorsuch. Photo by Evan Vucci/AP

A version of this news article first appeared in The School Law Blog.