Justice Gorsuch Wastes No Time Stirring Up Trouble

(Bloomberg View) -- It’s customary for new Supreme Court justices to ease into the job. Not so Justice Neil Gorsuch, who has flung himself into his truncated first term like a whirlwind. Now that the dust has settled, it’s clear that Gorsuch wants to establish himself as the new leader of the court’s conservative wing -- fast. No opinion is a better indicator than his dissent from the court’s summary reversal in the Arkansas gay adoption case, Pavan v. Smith.

The case involved a legal holdover from before the court’s landmark 2015 gay-marriage decision, Obergefell v. Hodges. Arkansas law generally requires the name of a married mother’s husband to appear on her child’s birth certificate, whether he’s the biological father or not. This rule meant, among other things, that couples who conceived using a sperm donor could nonetheless have the names of the two birth parents on the certificate.

After Obergefell, the obvious fix for the Arkansas law should have been to say that birth certificate should ordinarily bear the name of the married spouse -- whether man or woman -- of the birth mother. That would treat female same-sex couples the same as opposite-sex couples.

But the Arkansas Department of Health refused to do so despite the Obergefell precedent. And the state supreme court -- an elected body, it’s worth noting -- refused to apply Obergefell to require the listing of the married female spouse of the birth mother.

That brought the issue to the U.S. Supreme Court, where six justices produced the unsigned opinion that reversed the Arkansas court summarily -- meaning without full briefing or oral argument.

The opinion explained simply and correctly that Arkansas had denied same-sex couples the “constellation of benefits that the state has linked to marriage.”

The number six is significant. It means not only Justice Anthony Kennedy, author of the Obergefell decision, participated, but also Chief Justice John Roberts, who dissented at length in the Obergefell case.

Roberts took part for the simple reason that Obergefell is now the law of the land, and the Arkansas Supreme Court was flouting it. Roberts cares about precedent. And he cares still more about the judicial authority of his court.

Roberts would like the gay-marriage issue to go away now that it is decided. He doesn’t want state courts all over the South trying to resist Obergefell and creating a raft of new, contested Supreme Court decisions about gay marriage.

Summary reversal is the court’s usual practice when a lower court decision isn’t just wrong, but wrong in an obvious way in the light of Supreme Court precedent. It’s a way of monitoring lower courts’ adherence to precedent without spending all the judicial resources that go into full briefing and oral argument.

For this reason, Gorsuch’s dissent, joined by Justice Clarence Thomas and Samuel Alito, is highly significant -- evidence of a bid to become hardline leader.

Gorsuch didn’t expressly say that Obergefell was wrongly decided. That would have been a bridge too far. Instead, he wrote, “Respectfully, I don’t believe this case meets that standard” for summary reversal without argument.

His reasoning was pretty doubtful. Gorsuch said that the Arkansas opinion didn’t defy the Obergefell precedent but rather sought to “earnestly engage” it. The state court, he asserted, merely accepted the state’s claim that there were “rational reasons” for a “biology based birth registration regime.”

The problem with this view of course is that Arkansas doesn’t have a biology-based registration policy. It has a marriage-based regime.

Gorsuch went further by saying that “to the extent they speak to the question at all, this Court’s precedents suggest just the opposite conclusion” from the summary reversal. That’s essentially an assertion that Obergefell shouldn’t be read to require equal treatment on birth certificates.

What this means for conservatives is that Gorsuch -- with two more votes on his side -- wants more states to refuse to apply Obergefell according to its simple logic. Instead, Gorsuch is inviting state courts, some of them elected in states where gay marriage remains unpopular, to put up barriers to marriage equality.

The bigger stakes here lie in the question of whether and to what extent the court’s gay-marriage decision will face further judicial resistance nationwide. Already, religious liberty is being deployed as the mechanism for such legal resistance. The Supreme Court will address that issue in the fall, when it considers the case of a Denver baker who argues that he shouldn’t be required to make cakes for same-sex couples in violation of his religious beliefs.

But Gorsuch’s opinion invites resistance on other dimensions of state law -- dimensions many legal experts had considered closed after Obergefell, and the six justices think should remain closed.

Gorsuch doesn’t have the votes now to make such resistance succeed. But that he is inviting it anyway is an effective rallying cry to conservative activists. They know that they will in the future get an opinion from Gorsuch, at any rate, supporting their efforts.

Crucially, this shows that at this stage of his judicial career, Gorsuch isn’t on board with Roberts’s commitment to precedent. He’s rabble-rousing. And the reason to do that is to become the conservative leader.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.

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