He’ll do

Gorsuch’s previously expressed views suggest that, given the chance, he would outlaw abortion, which would please Trump’s base, and weaken the regulatory state in favor of business, which would please Bannon and the alt-right.

In the Hobby Lobby case, Gorsuch endorsed a corporation’s right to religious liberty and to use that liberty to deprive its employees of federally required health coverage, specifically contraceptives. He has also written extensively on the “inviolability of life” in the context of assisted suicide and euthanasia, with portentous implications for abortion.

But most importantly for the libertarian agenda of Trump and Bannon, Gorsuch has questioned Chevron deference, the principle that federal agencies are relatively free to implement their interpretations of the law enabling them to act.  Without Chevron deference, the effectiveness of an agency such as the EPA or OSHA, can be easily hamstrung with lawsuit after lawsuit reviewing its authority.

Gorsuch’s role is functionary. It is not a matter of his independence from politics, a sine qua non of the rule of law. Perhaps he would do the right thing if given the opportunity to rule against Trump in a clear case. But his pre-existing views fit a profile. Trump and Bannon are willing to risk the unlikely chance that the Supreme Court will have the opportunity to judge, or the enforcement power to stop, presidential abuse of power — in order to seize much more likely opportunities for both patriarchy and plutocracy to triumph.


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