Last night, President Trump announced that he is nominating Neil Gorsuch to be a Supreme Court justice. Like the rest of Trump’s nominees, Gorsuch is a millionaire who consistently sides with corporations and institutions rather than people—including children.
In 2004, the parents of a then-ten-year-old boy known only as “Luke P.” enrolled him in a residential school. Luke, who was diagnosed with autism at age two, had been unable to carry over the functional behaviors and skills he learned at school to other environments. Although he was toilet trained at school, when he was at home he spread bowel movements around his room. And in some respects, he was actually regressing: an occupational therapist observed that school staff were even inadvertently reinforcing negative behaviors.
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But Luke’s home school fought his parents’ request that his residential placement be covered by the district under the Individuals with Disabilities Education Act (IDEA), an education law that guarantees students with disabilities “a free, appropriate education” that is tailored to their needs. Jeff and Julie P. took on the district and won repeatedly, in Colorado administrative proceedings and then in federal district court.
Then they reached the Tenth Circuit and went before Judge Neil Gorsuch.
Gorsuch reversed the district court, holding that the IDEA only required a school to provide a “basic floor of opportunity,” and nothing more. Even though a residential program obviously provided far more benefits for Luke, Gorsuch ruled that his parents were not entitled to reimbursement for the additional cost because Luke had no right to an education that would allow him to function in environments outside of school.
Again and again, Gorsuch has acted against individuals’ rights and interests—usually to the benefit of big businesses. As a trial lawyer, Gorsuch represented a billionaire suing a company for a massive payout—at the expense of the Teachers’ Retirement System of Louisiana. On the bench, he’s ruled against workers again and again—most famously in the Hobby Lobby case, which held that for-profit companies can force their religious views on their employees. When there’s a choice between placing a burden on a corporation or institution and protecting people, Trump can count on Gorsuch to toe the line.
Gorsuch’s fondness for corporations is anything but subtle. One of his most troubling views has to do with the rules and regulations agencies make to implement critical laws like the Clean Water Act (or, say, IDEA). In short, he’s against them.
Gorsuch has been a vocal opponent of the 1984 Supreme Court decision that requires courts to defer to agencies when it comes to interpreting the laws they’re charged with enforcing. According to Gorsuch, that complicates life for businesses who may want to resist regulations. “Who can even attempt” to fight a rule, Gorsuch asked in a 2016 opinion, “without an army of perfumed lawyers and lobbyists?”
If it were up to Gorsuch, courts would be able to overrule agencies. That would be a massive blow to the means by which our government regulates businesses and protects Americans’ health and safety. People without the means to challenge corporations in court when they pollute or after financial institutions exploit them rely on government—on agencies like the Environmental Protection Agency—to keep them safe.
Gorsuch’s anti-regulatory stance is just another way he’s in line with Trump and his congressional allies. Trump has issued a sweeping freeze on regulation, and he’s signed an executive order creating new obstacles to rulemaking and suggesting agencies have to repeal two rules to make one new rule—with the explicit purpose of giving businesses a boost. Meanwhile, the House has passed a trio of bills that would let Congress and the courts strike hundreds of critical regulations—including fair pay and sick leave guarantees, nutrition standards for public schools, and limits on corporate pollution and contamination—and make it next to impossible for agencies to enact new protections.
It’s easy to paint Gorsuch’s nomination as “more of the same” from the Trump administration, but this nomination is different. The judiciary is supposed to be impartial. Gorsuch’s job as a justice on the Supreme Court would be to serve as an independent check on the other branches of government—a role that’s more important than ever in the wake of the recent spate of extreme executive actions that challenge the separation of powers.
But Gorsuch won’t check the Trump administration—he’ll aid and abet it.