According to Richter Professor of Political Science Carol Nackenoff, the selection of Judge Neil Gorsuch to the Supreme Court will excite conservatives, but they should not expect him to be an exact replica of Antonin Scalia.
“Scalia wanted to write for a wide conservative audience and influence the next generation of conservative lawyers," says Nackenoff, an authority on constitutional law and the Supreme Court. "His opinions were often witty, frequently deploying a lively sense of humor. He dominated questions from the bench in oral argument and was not very effective in persuading fellow justices, lobbing abrasive verbal attacks on the views — and intelligence — of colleagues. Since he was not a consensus-builder, a justice unlike Scalia in this regard might be more effective in persuasion.”
Nackenoff calls Gorsuch a “staunch defender of religious freedom who supported the Burwell v. Hobby Lobby Stores Inc. (2014) decision," which ruled that for-profit corporations are exempt from laws its owners religiously object to if there are less restrictive means. She also notes that at 49, he is youngest justice nominated to the Court since Clarence Thomas and could easily influence the Court for 35 years if confirmed. Gorsuch, supported by the Federalist Society, has clerked for moderate justices Byron White and Anthony Kennedy.
She also notices an uncanny similarity between Gorsuch’s educational background - Columbia B.A. and Harvard J.D. - and that of former President Obama, who has the same. "Trump lauded Gorsuch’s educational background," she says, "while devaluing and questioning the educational credentials of Obama.”
As for the impact on the current Court, she believes that replacing Scalia with another conservative changes relatively few decisions; she points to Scalia’s support for protesters who burn the flag as one of the exceptions. She notes that the next appointment stands to unravel a number of more liberal decisions.
“However, given the intransigence of Senate Republicans when President Obama nominated Merrick Garland to the Court in March, Senate Democrats may turn to the filibuster," she says. "If a nominee lacking strong across-the-aisle support cannot be confirmed, the Court may continue with eight members for the foreseeable future – that is, unless Senate Republicans eliminate the filibuster for Supreme Court nominees."
At Swarthmore, Nackenoff teaches American politics, constitutional law, environmental politics, and political theory. She is the author of Oxford Bibliographies Online Guide to the Supreme Court, The Fictional Republic: Horatio Alger and American Political Discourse (Oxford, 1994), and is a contributor to Jane Addams and the Practice of Democracy (University of Illinois Press, 2009). Her current research project is a manuscript on the contested meaning of citizenship in the United States from 1875-1925, a period that witnessed extensive conflict over the extent and terms of incorporation of women, African Americans, Native Americans, workers, and immigrants into the polity.