Bench Memos

Law & the Courts

More Andy Schlafly Smears of Trump Supreme Court Candidate Neil Gorsuch—Part 1

There he goes again.

I’ve already responded at length to Andy Schlafly’s deceptions and distortions about various of the Supreme Court candidates on President-elect Trump’s list (see links here—candidates whom his late mother Phyllis Schlafly described as “top-notch” and took credit for putting on Trump’s list. Schlafly has never engaged my arguments, nor has he even linked to them, as he understandably prefers to keep his gullible minions in the dark.​

Amid reports (of who-knows-what reliability) that Tenth Circuit judge Neil Gorsuch has emerged as the frontrunner, Schlafly has renewed his attack on Gorsuch. He now claims—in boldface and italics that I’ll spare you—that Gorsuch “is NOT pro-life.” (For what it’s worth, in his initial assessment, Schlafly reserved that stronger condemnation for three other candidates; he instead placed Gorsuch in the group of those who “probably would NOT be pro-life.”)

For the sake of comprehensiveness, I will address all the claims about Gorsuch that Schlafly makes in his latest email as well as in the link to further information that he includes in that email. Many of these I already dismantled in my initial critique. So let me start with some of Schlafly’s new—and also hilariously incompetent—falsehoods:

1. Schlafly now claims that Gorsuch has “written multiple opinions that demonstrate he’s not pro-life.” Here’s the supposedly powerful example he offers:

For example, in the case of Pino v. U.S., Gorsuch discussed whether a 20-week-old “nonviable fetus” had the same rights as a “viable fetus.” Gorsuch, showing that he is not pro-life, indicated that his answer is “no” unless the Oklahoma Supreme Court specially found rights for the “nonviable fetus.” Rather than render a pro-life ruling, Gorsuch punted this issue to the Oklahoma Supreme Court for it to decide. Gorsuch’s approach is similar to the unjust approach based on viability that underlies Roe v. Wade.

Schlafly doesn’t provide a link to Gorsuch’s opinion. Why not? Perhaps because anyone reading it would quickly discover these things:

Michael and Amy Pino were suing an Indian care hospital and its doctor for the wrongful death of their nonviable stillborn baby. Everyone recognized that the liability of the defendants turned on whether Oklahoma law allowed a wrongful-death action for a nonviable stillborn. But the district court declined the Pinos’ request to certify the question to the Oklahoma supreme court and instead granted summary judgment against the Pinos.

On appeal, the Pinos asked the Tenth Circuit panel to certify the question to the Oklahoma supreme court. In a unanimous opinion by Gorsuch (which pro-life champion Michael McConnell joined), the Tenth Circuit granted their request. So much for “punting.”

Schlafly’s claim that Gorsuch “indicated that his answer is ‘no’ unless the Oklahoma Supreme Court specially found rights for the ‘nonviable fetus’” is sheer fantasy.

Schlafly also conveniently omits the aftermath: The Oklahoma supreme court ruled that the cause of action did exist, and Gorsuch then wrote an opinion that reversed the district court’s grant of summary judgment against the Pinos and revived their claim. Yet Schlafly somehow dares to use this case to smear Gorsuch.

2. Schlafly claims that Gorsuch “opposes overturning precedent even when it’s wrong.” In his fuller charge, Schlafly writes:

Gorsuch also clings to bad precedent, and is an extreme supporter of stare decisis, both of which are excuses for upholding Roe v. Wade rather than overturning it. “Our duty to follow precedent sometimes requires us to make mistakes,” Gorsuch declared in ruling against the Second Amendment rights of man [sic] before his court. United States v. Games-Perez, 667 F.3d 1136, 1142 (10th Cir. 2012) (Gorsuch, J., concurring).

In the panel ruling in Games-Perez, Gorsuch did indeed regard himself as bound to abide by controlling circuit precedent, just as nearly every circuit judge not named Stephen Reinhardt also does. But Gorsuch didn’t stop there. In a 20-page opinion, he urged the en banc Tenth Circuit to reconsider and overrule the wrong precedent.

In short, Schlafly’s claim that Gorsuch “clings to bad precedent, and is an extreme supporter of stare decisis” is flatly contradicted by the very case that Schlafly invokes. Nor, I’ll add, did the defendant in that case assert, or did Gorsuch rule against, any Second Amendment rights. Rather, it was Gorsuch who, in support of his criticism of circuit precedent, observed that “the Supreme Court has held the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly.”​

More to come.


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