Just a few weeks ago, Supreme Court headlines caused some of President Donald Trump’s supporters to pause for a moment.
Neil Gorsuch, Trump’s first Supreme Court nominee, had sided with the liberal justices for the first time in a 5-4 vote. The court had invalidated a provision of federal law that required the mandatory deportation of certain immigrants.
Had Trump squandered the opportunity to move the bench to the right? Would Gorsuch turn out to be a David Souter, a justice nominated by a Republican president who became a consistent liberal vote?
Judicial conservatives steeped in the law recognized immediately that even though Gorsuch had sided with the liberals in the case released on April 17 he was in fact, following the jurisprudence of his mentor, the late Justice Antonin Scalia. Scalia often joined liberals on the bench when it came to the rights of criminal defendants, particularly if the laws used to convict them weren’t clear.
So in Sessions v. Dimaya when Gorsuch wrote “vague laws invite arbitrary power,” he was echoing Scalia.
And ultimately, the opinion, like several other early signs of Gorsuch’s jurisprudence, did nothing to surprise those who worked to put Gorsuch on the bench.
But if there had been any lingering questions about whether the 50-year-old justice would disappoint Trump’s core supporters, a new case released on Monday answered the question with a resounding ‘No.’
The junior-most justice penned the 5-4 opinion siding with employers. The ruling was a victory for business and the Trump administration as it held that employers could require employees to sign class action waivers to bar them from banding together to fight legal disputes.
It was Gorsuch’s first big opinion for the conservatives and he had presumably been assigned to write it by Chief Justice John Roberts, who was part of the majority, along with Justices Samuel Alito, Anthony Kennedy and Clarence Thomas.
Gorsuch said the opinion “did nothing to override” Congress’ judgment. “Congress has instructed that arbitration agreements like those before us must be enforced as written,” he said.
The opinion triggered the liberal Justice Ruth Bader Ginsburg to do something she rarely does: read her dissent from the bench.
She called the employment agreements “arm-twisted, take-it-or-leave it contracts” that will result in the isolation of employees.
For good measure she said the majority was “egregiously wrong.”
She wasn’t the only one who said the ruling would undermine the right of workers.
“This is a shameful result that will have the practical effect of gutting our nation’s civil rights and worker protection laws,” said Michael Rubin, a lawyer who had filed a brief on behalf of unions.
In his opinion, Gorsuch called such predictions “apocalyptic warnings” and false alarms.
Andrew Pincus, who sided with employers in the case, said in a statement that consumers will benefit from lower prices resulting from companies’ reduced legal fees and that the plaintiff’s class action lawyers will be hurt. “Less litigation in court means lower fees for lawyers” he said.
But SEIU International President Mary Kay Henry issued a statement noting that the decision concerning non-union and private sector employment underlined the vitality of unions.
“This case goes to the heart of why unions are important to our nation’s workforce,” the statement read.
Left out of her statement, however, was the fact that the Supreme Court is currently considering a separate case that could gut the financial stability of public sector unions.
Last fall the justices decided to hear Janus v. American Federation. The court had heard a similar case in 2016, Friedrichs v. California Teachers Association, but after the sudden death of Justice Antonin Scalia ultimately deadlocked 4-4.
Like in the Epic Systems Corp. case Monday, Gorsuch said nothing during oral arguments earlier in the term. But his vote will, once again, be key. And liberals still thinking about how these cases would have come out if Merrick Garland had been confirmed to the bench, aren’t holding their breath.
Correction: This story has been corrected to reflect that the Supreme Court said last fall it would hear Janus v. American Federation. It had previously deadlocked on a similar case.
