The current Administration nominated Judge Niel Gorsuch for the Supreme Court seat left vacant by the death of Justice Antonin Scalia.
Judge Gorsuch, like Justice Scalia, believes in originalism, and has argued that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda” because they are “failing to reach out and persuade the public.” As FiveThirtyEight has shown, Judge Gorsuch’s is idealogically to the right of Justice Scalia.
Judge Gorsuch voted with the majority in what became Burwell v. Hobby Lobby Stores, Inc., essentially agreeing with the ultimate decision by the Supreme Court, that the government could not enforce the Affordable Care Act (Obamacare) contraceptive requirement against Hobby Lobby, because doing so infringed on Hobby Lobby’s religious freedom.
Judge Gorsuch is also a proponent of eliminating Chevron deference, and by extension Auer deference. Chevron deference requires the courts to defer to the Executive branch’s interpretation of a statute that is found to be ambiguous. Auer deference does the same thing for an Executive agency’s interpretation of its own regulations. If Judge Gorsuch is confirmed, it is all but certain that Chevron and Auer deference will cease to exist, and if confirmed on time, that will happen in Gloucester County School Board v. G.G., the case of Gavin Grimm, the transgender male student who is fighting for the right to use the restroom designated for hi gender.
While Chevron and Auer deference can cut both ways, eliminating them will mean that the interpretation of the Obama Administration of the word “sex” to include gender will be overturned, dealing a setback to transgender rights. And that is likely to just be the start.