Can your lawyer declare your guilt against your will?

For those who favor robust protection of civil liberties, there’s a tragic dimension to cases in which two valued rights come into conflict. Consider, for example, the conflict posed during celebrity trials between the defendant’s Sixth Amendment right to a fair trial and the media’s First Amendment right to cover that trial, where the exercise of the latter right might prejudice the jury pool against the defendant and thus jeopardize the exercise of the former right. Last Wednesday, the Supreme Court heard oral argument in a case that presents a conflict between two different dimensions of the Sixth Amendment: the right to counsel, which implies the right to reject counsel when the defendant believes that counsel is not representing his wishes accurately, and the broader right to a fair trial. The outcome will ultimately depend on whether the Court enshrines in the Sixth Amendment the adage that the doctor who treats herself has a fool for a patient.

The case, McCoy v. Louisiana, involves a dispute between a Louisiana death-row inmate, Robert McCoy, and his attorney, Larry English, over the optimal strategy for defending McCoy against three first-degree murder charges. English, who had been hired by McCoy’s parents after McCoy had fired his public defenders, wanted McCoy to confess to the crimes while claiming that he never meant to kill anyone; this course of action, English believed,  would maximize the likelihood of the jury’s sparing his client’s life, albeit at the cost of a lengthy prison term. McCoy, despite considerable evidence pointing to his guilt, insisted on his innocence and claimed that the police were framing him to keep him from revealing their drug-trafficking operations. Against McCoy’s express objections, English told the jurors that McCoy had committed the crimes. The gambit backfired, as the jury not only convicted McCoy, but sentenced him to death as well.

The question before the Supreme Court was whether McCoy’s rights were violated, thus necessitating a new trial, as a result of English’s behavior. The Court had held in 2004 that lawyers could concede their clients’ guilt in capital cases despite the absence of explicit consent. But could lawyers make such a concession over the explicit objections of their clients? There was no question that McCoy objected to any admission of guilt, based on his dismissal of his public defenders and his (and his parents’) unsuccessful attempt to fire English over their refusal to take his claims of a police conspiracy against him seriously. It’s less clear whether the strategy favored by McCoy would have produced a result more favorable to him, and absent a new trial, we will never get to see that alternate timeline play out. By most accounts, the justices at oral argument appeared to side with McCoy, though the question remained open as to how much and what types of lawyer-client conflict would be needed to trigger a retrial.

I’ve been batting this case around for some time, and I can’t see any legally plausible way to reject McCoy’s position. Barring a finding of incompetence to stand trial–a finding that Justice Samuel Alito considered potentially applicable to McCoy–or a request that counsel do something illegal, defendants have the right to direct their own defenses. It’s the defendant whose liberty and, in this case, life are on the line; Larry English was dismayed at the outcome of Robert McCoy’s trial, but McCoy was the one who would be facing the executioner. There is an expectation that the agent (English) will faithfully serve the interests of the principal (McCoy), and allowing for divergence between the two actors puts the principal at risk of losing control over his own fate. Put differently, a meaningful right to counsel implies a right to reject the advice of one’s counsel, even at the risk that they “can walk themselves, regrettably, into the gas chamber, as Justice Sonia Sotomayor put it during questioning.

But from a practical standpoint, it is unclear that a victory for McCoy would serve his interests best, if his interests include staying alive. Consider why principals retain agents in the first place. Given the cost of developing legal expertise and experience as a practitioner, it made sense for McCoy to retain a lawyer already possessing those qualities. As his agent, English possessed another quality that McCoy could never acquire: a critical distance that would enable English to view the situation in a more dispassionate light. These qualities should count for something. We would blanch at the thought of a client’s wishes being entirely disregarded, but we should also be concerned at the prospect that an attorney’s expertise will be disregarded, to the client’s detriment. (And no, we should not avail ourselves of the benefit of hindsight in this case. English’s strategy did not spare his client’s life, but it was not unreasonable of him to think that it might, especially given the unpalatable alternatives available to him.)

What we’re left with, then, is a dispute over the degree to which legal representation should be based on a delegate model, in which the agent faithfully carries out the principal’s wishes irrespective of the agent’s assessment of the sensibility of those wishes, as opposed to a trustee model, in which the agent serves the principal’s interests but has more leeway to use her independent judgment to determine how to serve those interests most effectively. Each model, in its purest form, presents troubling possibilities. But it is unclear whether the justices will be able to identify a principled rule identifying lawyer behavior sufficiently weighty to justify a retrial. (Even “death is different” proves insufficient, in that treating capital cases as sui generis fails to account for the multitude of strategic choices, aside from admitting to having committed the crime, that a dissatisfied client could call into question.) My expectation is that McCoy will get a retrial, but without any clear legal precedent being established.



Why Judiciary Committee hearings might still matter

Even those observers who are conditioned to expect the worst from a Donald Trump nominee had to be gobsmacked by the performance put on Friday in front of the Senate Judiciary Committee by Matthew Spencer Petersen, appointed to a district court judgeship for the District of Columbia (video here):

Sen. John Kennedy (R-LA) quizzed Petersen on his legal background and knowledge on Wednesday, beginning by asking if he had ever tried a case in court. Petersen replied that he had not. Petersen also said that he has never taken a deposition on his own, though he helped while working as an associate at a law firm after he finished law school.

Kennedy then started on legal terminology, asking Petersen if he knows what the Daubert standard is.

“Sen. Kennedy, I don’t have that readily at my disposal, but I would be happy to take a closer look at that. That is not something I’ve had to contend with,” Petersen replied.

Similarly, Petersen said he did not have a deep understanding of a motion to limine.

Just to clarify for those of you who are less versed in the law: Sen. Kennedy, a rock-ribbed conservative, was not asking obscure “gotcha” questions designed to embarrass an otherwise qualified nominee. Understanding the law governing decisions to exclude testimony is crucial to being able to conduct trials, both criminal and civil. Confirming a nominee lacking this knowledge would be akin to hiring a baseball umpire who could not define the rulebook strike zone. It’s hard to envision any other job interview where answers revealing deficiencies of similar magnitude would earn the candidate a second interview or a job offer, rather than abrupt termination of the interview.

So why nominate Petersen in the first place? After all, there’s no shortage of conservative legal practitioners and scholars whose credentials and ability to conduct a trial are above reproach, and the Federalist Society is well-positioned to identify and vet potential nominees. (It’s possible that the Federalist Society takes less interest in trial court nominees than appellate nominees.) It’s tempting to situate such judicial nominees within the broader category of Trump nominees who are spectacularly ill-qualified for the positions to which they have been appointed. But Betsy DeVos, Ben Carson, and Rick Perry, to select just a few from a very long list, were chosen precisely to undermine agencies whose missions they fundamentally oppose. Their incompetence is a feature, not a bug. Does it make sense to conceive of nominations like Petersen’s as attempts to undermine an independent judiciary, through the selection of individuals whose primary loyalty is to protecting Trump and his inner circle, instead of as misguided choices within now-standard efforts toward building an ideologically compatible judiciary? I’m currently leaning toward the latter, but as has so often become the case these days, it’s challenging to distinguish between malice and incompetence.

The puzzling political calculations behind ACA sabotage

I must confess to having a track record of chronically underestimating President Trump’s ability to defy gravity (as well as all norms of human decency), but I can’t make sense of the political calculations behind his administration’s barely-secret campaign to sabotage the Affordable Care Act (ACA). (I’ll count this as evidence, even though it comes from someone who has recently left the administration.) Consider how each of the following groups has responded or is likely to respond:

  • Supporters of the ACA have recognized the sabotage campaign for what it is: an attempt to accomplish through executive malfeasance–OK, discretion, if you’re unwilling to accept that incentivizing healthy people to leave the Obamacare insurance markets will cause their collapse–what could not be accomplished through legislation. When premiums on the individual insurance markets soar and insurers abandon said markets, ACA backers will know whom to blame. As will women, supporters or not, who will be losing contraceptive coverage because they work for employers claiming religious objections to some or all methods of contraception other than withdrawal and prayer.
  • Opponents of the ACA will not be satisfied because the Congress they elected promised “repeal and replace,” and their president promised that the replacement would provide “something terrific.” One-party domination of Washington has failed even to generate repeal, never mind replacement. As such, a change of partisan control could result in the ACA’s resurrection, with Democrats being prepared to make the ACA more robust and sabotage-proof, if not to replace it with single-payer. Moreover, administrative sabotage also denies you the opportunity to take credit for repeal. Suppose someone builds a structure that you claim is rickety but manages to stay upright. If you work to undermine its stability and the structure eventually collapses, you can publicly claim credit for the structure’s demise only by acknowledging your role in precipitating the collapse. Claiming to have done nothing, after having predicted its shakiness so publicly, leaves you vulnerable to the charge that you could have acted to save the structure, but failed to do so.
  • Policyholders on the individual markets vary a great deal in their political awareness. The less-aware are unlikely to have followed the political debates over the ACA and might be especially prone to adopting the “both sides do it” framing so prevalent in much mainstream media coverage. But even if they don’t know the intricacies of either the policy or political debates, they’ll know that premiums rose dramatically, and that this rise occurred on Trump’s watch. As such, he’ll own those increases, despite his claims to the contrary. To be sure, some of those policyholders will remain loyal to Trump no matter what he does. But given Trump’s loss of the popular vote and subsequent loss of popularity, any bleeding of support is consequential.

The best-case scenario for Trump is the one in which his ransom note generates negotiations to save the Obamacare markets. If these negotiations produce a deal, the president could point to the result as yet another example of his superior deal-making acumen. But there’s no reason for Democrats to ride to Trump’s rescue. Both policy and electoral considerations argue strongly against a hostage negotiation; more critically, the president has no leverage in this situation.  Whether he publicly takes credit for breaking the Obamacare exchanges, the public–and especially the subset that would be harmed most directly–will know whom to hold responsible, and, despite what the president believes, it won’t be Democrats. Or maybe I’m putting too much faith in gravity.


Is the partisan gerrymander facing endangerment? Let’s ask Justice Kennedy

Bernard Grofman and Gary King, in a 2007 Election Law Journal article, drew parallels between redistricting and a boxing match, in that while we expect the combatants in each setting to try to clobber each other, we also expect there to be rules that place some actions off-limits. On Tuesday, the Supreme Court, hearing oral argument in Gill v. Whitford,  grappled with the question of whether the more appropriate analogy is to a street brawl. There’s just enough devil’s advocacy from the justices to make forecasting based on oral argument an inexact science, but it would appear that those challenging the Wisconsin state legislative districting have greater cause for optimism, however guarded, than those defending it.

Tuesday’s hearing was further proof that until the next departure from the Court, it’s Justice Anthony Kennedy’s world, and his eight colleagues are just living in it. Kennedy is central not only because he represents the Roberts Court’s swing justice, but also because he is the only conservative on the Court who has entertained the possibility that the Court could strike down partisan gerrymandering, as long as the justices have a “workable standard” for determining when redistricting efforts had gone too far in promoting partisan aims. In the 2004 case representing the Court’s last consideration of the constitutionality of partisan gerrymandering, Vieth v. Jubelirer, Kennedy’s conservative colleagues took the position that courts had no administrable method for identifying unconstitutional gerrymandering, and that redistricting is inherently a political exercise into which courts should not intervene. Today’s conservative bloc took the same position, while the liberal justices worked to demonstrate the availability of several workable quantitative measures of gerrymandering, and more broadly to show that grappling with the social science underpinning the challengers’ case was not beyond the capacities of federal judges. If the challengers and their backers on the Court succeed in persuading Kennedy, many other states will see their district maps jeopardized, with effects to be seen as soon as the 2018 elections.

So how persuadable is Kennedy? Some points to consider:

  • He’s considered a strong defender of the First Amendment, and as such he might be sympathetic to the claim that extreme gerrymandering leads to identifiable voters facing unconstitutional discrimination based on their political affiliations and views. Then again, the other justices who joined him in the majority in Citizens United, a case also relying on a First Amendment claim, are all but certain to side with Wisconsin’s position. So being a First Amendment stalwart hardly guarantees that one will accept the particular First Amendment claim being advanced. But while Kennedy questioned the Wisconsin map’s defenders about First Amendment arguments, he did not similarly put the challengers on the spot on this point.
  • Kennedy also did not push the challengers’ attorney, Paul Smith, on the question of judicially manageable standards for identifying extreme gerrymanders. If Kennedy didn’t inquire because his mind was already made up, is it more likely that he was satisfied by what the challengers and political science amici had proposed, or that he has very quietly abandoned the views he expressed in his Vieth concurrence?
  • Finally, while I find the term “judicial activism” analytically unhelpful and not much more than a pejorative, Kennedy’s legacy on the Supreme Court, aside from representing that crucial fifth vote on so many decisions, is rooted in his willingness to play an assertive–an activist?–role in promoting certain values, be they federalism or promotion of human dignity. Might Kennedy see himself as trying to save representative democracy from gerrymandering designed to lock in temporary electoral majorities? Paul Smith asked all nine justices to make such an effort: “You are the only institution in the United States that can solve this problem just as democracy is about to get worse because of the way gerrymandering is getting so much worse.” But his words were targeting one particular justice.

Basically, there are three ways this case can be resolved, assuming the justices don’t dodge the matter entirely by claiming that the challengers lacked standing to sue:

  1. Declare partisan gerrymandering non-justiciable, thereby establishing Wisconsin’s map as the model for future state legislative gerrymandering.
  2. Declare partisan gerrymandering justiciable on First and/or Fourteenth Amendment grounds, and provide a multi-part test for identifying gerrymandering, along the lines of what Justice Stephen Breyer referred to during oral argument, that draws upon quantitative measures as well as the broader political context within which the contested lines were drawn.
  3. Declare partisan gerrymandering justiciable, but without offering any standard beyond “I know it when I see it.”

My expectation is that Kennedy will open Door #2.

Be wary of those advising you to bring a butter knife to a gun fight

In Thursday’s New York Times, Adam Liptak highlighted an irony of President Trump’s tirades against the federal judiciary: that the rulings thwarting some of his higher-profile executive orders–the travel ban and the threat to strip “sanctuary cities” of federal funding, more specifically–stem from precedents established by conservative Supreme Court justices and litigation strategies pursued by conservative actors (for the latter, also see here). In particular, Liptak focused on two practices used to block actions taken under Presidents Obama and Trump: (1) bringing constitutional challenges against policies that threaten states with financial harm if they do not carry out federal policy, and (2) asking individual district court judges to grant injunctions with nationwide effect. (I’d also credit the conservatives on the Rehnquist Court for their support of an “anti-commandeering” principle limiting the ability of the federal government to compel state and local actors to carry out federal policy.) The bulk of Liptak’s analysis proceeded to explain why liberals should be wary of the prospect of conservatives’ litigation tools being used to serve liberal ends. But the implications of this warning for how Democrats should respond to Trump policy initiatives–though the term “initiatives” suggests something more organized than this bunch of ill-conceived and amateurishly constructed executive orders–are murky at best, and Democrats would be foolish to follow the article’s implied advice.

Liptak is correct to note that both liberals and conservatives demonstrate Gumby-esque flexibility when it comes to their commitment to federalism and willingness to pursue short-term political victories at the expense of longer-term adherence to constitutional principle. But apparently, only liberals should eschew such flexibility, according to the two quoted law professors, both of whom do possess track records of commitment to federalism:

Josh Blackman, a law professor at South Texas College of Law, said Democratic officials should strive for more consistency, even if only as a matter of self-interest. “Whatever California can do to resist immigration law,” Professor Blackman said, “Texas can do to resist environmental laws.”

Ilya Somin, a law professor at George Mason University, made a similar point from the opposite direction about the decision on Tuesday to block efforts to withhold federal money from sanctuary cities.

“Some conservative Republicans may not like the outcome of this specific case,” he wrote on The Volokh Conspiracy, a legal blog. “But they will have reason to celebrate it the next time a liberal Democratic president tries a similar move.”

The implication of these recommendations is that liberals should accept a paradigm in which states’ rights govern when Democrats control Washington, but not when Republicans do. But how does that translate into action?  How should Democrats respond to Trump executive orders they consider objectionable (pardon the redundancy)? Let’s consider the available alternatives to the status quo approach:

  • Liberals should refrain from raising states’ rights-based legal objections in court. The implication is that staying one’s hand today will preserve the ability tomorrow to defend strong national authority exercised on behalf of liberal causes (e.g., environmental protection, LGBT rights). But the practices liberals are being advised to eschew (making states’-rights arguments, seeking injunctions from judges based in favorable terrain) already exist. If liberals take this advice, these practices will still be available the next time a liberal administration needs to be thwarted. Barring a Supreme Court willing to revisit Rehnquist Court views on federalism–and no one should hold their breath waiting for the arrival of that Court–the precedents relied on by conservative litigators will remain available for deployment. A foolish consistency might not be the “hobgoblin of little minds” that Emerson claimed it is, but it would hardly guarantee future rulings favoring national authority dedicated to liberal ends. So if you’re stuck with conservative-preferred doctrine either way, why deny yourself the opportunity to use it to attain liberal-preferred results?
  • Liberals could exclusively raise legal claims not rooted in federalism. One of the advantages of litigating against a post-policy administration disinterested in legal niceties is that a wide range of legal claims opens itself up to you. Why not base one’s legal attack on claims rooted in equal protection or the First Amendment, as we saw in the response to the travel ban, or due process, as we’re seeing in the challenge to Trump’s attack on sanctuary cities? That way, you avoid lending support to doctrinal concepts you’d like to see discarded eventually, while backing concepts that you’d like to see fortified. Fortunately for liberal litigators, rights-based claims and federalism-based claims are not mutually exclusive logically or strategically. There’s no reason not to raise both and let judges decide which ones are more persuasive. Raising both sets also improves one’s chances of winning among a more robust set of judges; conservative judges who might be wary of expansive readings of equal protection, for example, could choose instead to rely on anti-commandeering arguments.

In short, we’re living in a legal regime that conservatives have played a crucial role in shaping. It would be folly for liberals to refuse to use the doctrines of that regime when they happen to work to liberals’ advantage, given the long odds that liberals will be able to alter that regime anytime soon.

Plagiarism and the Gorsuch nomination

I harbor no illusions, especially with the filibuster eliminated for Supreme Court nominations, that Judge Neil Gorsuch’s nomination will be derailed by claims, presented in Politico and Buzzfeed on Tuesday, that the nominee had used language from source material without attribution in his book and a 2000 law review article. (Here are the passages in dispute, so you can examine them side-by-side and draw your own conclusions about whether an offense was committed, and if so, how severe it was. Noah Feldman, for one, considers the plagiarism “embarrassing,” but not disqualifying.) Senate Republicans have made it this far in their effort to fence the stolen ninth seat on the Court, and it’s hard to envision that there will be sufficient defections for anything shy of confessing to being a devout Muslim or having performed an abortion. But here’s why the claims of plagiarism should matter.

When I talk to my students on the first day of class about academic honesty, I start by discussing Pete Rose’s ban from Major League Baseball (after telling less sports-literate students who Rose is). Even before the emergence of on-line gambling and daily fantasy sports, betting on major-league baseball games (as opposed to running bookmaking operations) was not considered a major criminal offense in American society writ large. But within the milieu of professional baseball, it has been considered a capital offense since 1927, when Major League Baseball adopted a stringent ban in response to the Black Sox scandal that tainted the 1919 World Series. Allowing players or coaches to wager on games in which they could directly influence the outcome (or even in games in which they couldn’t) would directly damage the integrity of the enterprise. The game could not survive without fans being able to trust that participants had no pecuniary interest in failing to try to win.

Similarly, the integrity of the academic enterprise requires that readers be informed about which words and ideas are the writer’s, and which ones come from outside sources. Disclosure enables readers to check that the author has represented his or her source’s ideas and words accurately, and to consider the source’s credibility when assessing the citing author’s work. The academic enterprise suffers irreparable harm when readers can’t assume a certain level of honesty on the part of authors.

The defenses of Gorsuch don’t hold up terribly well. Among the defenders presented by the White House were his mentor at Oxford (John Finnis), an external member of Gorsuch’s dissertation committee (John Keown), and the general editor of Gorsuch’s book (Robert George). When they minimize what Gorsuch did, these scholars are hardly arguing against interest, either ideological (a shared interest in natural law and desire to see a committed social conservative on the Supreme Court) or professional (not catching plagiarism is embarrassing for scholars reviewing others’ research, even when the misused material is unlikely to register as suspicious). More to the point, it’s hard to envision these scholars describing misappropriation by their undergraduates in the words George used to defend Gorsuch:

[Gorsuch] “did not attempt to steal other people’s intellectual property or pass off ideas or arguments taken from other writers as his own….In no case did he seek credit for insights or analysis that had been purloined. In short, not only is there no fire, there isn’t even any smoke,”

Surely George must know that standard definitions of plagiarism are wider ranging than what he offers as the definition he uses to clear Gorsuch. The Council of Writing Program Administrators defines plagiarism as resulting “when a writer deliberately uses someone else’s language, ideas, or other original (not common-knowledge) material without acknowledg­ing its source.” And the Modern Language Association defines plagiarism as follows:

“Using another person’s ideas or expressions in your writing without acknowledging the source constitutes plagiarism…. [T]o plagiarize is to give the impression that you wrote or thought something that you in fact borrowed from someone, and to do so is a violation of professional ethics…. Forms of plagiarism include the failure to give appropriate acknowledgment when repeating another’s wording or particularly apt phrase, paraphrasing another’s argument, and presenting another’s line of thinking”

People can reasonably differ on what consequences should arise from Gorsuch’s actions, but if the writings cited in the Politico don’t constitute plagiarism, then lazy or dishonest students across the country will have cause to breathe easier.

What about the defense offered by Abigail Lawlis Kuzma, author of the Indiana Law Journal article at the heart of the controversy? She claims that the copied passages at issue were “factual, not analytical in nature,” and that paraphrasing would have been “awkward and difficult.” But even if you accept the claim that rephrasing a highly technical passage would have been awkward–and there’s evidence that more lay-friendly paraphrases were possible)–why not simply quote the material directly and attribute it to Kuzma, along with the primary sources she used? Instead, we see material used word-for-word or close to it, along with ellipses in the same places in both works. I punish that kind of sloppiness when my undergraduates commit it; shouldn’t the standards be higher for someone aspiring to serve on the nation’s highest court? It appears that they won’t be, but that’s no reason to shrink from a defense of those standards.

Neil Gorsuch and whether the personal is jurisprudential

Have LGBT advocacy groups such as Lambda Legal and the Human Rights Commission been jumping the gun in their opposition to Judge Neil Gorsuch’s nomination to the Supreme Court, because Gorsuch has acted in ways that suggest he does not share Justice Antonin Scalia’s hostility to the LGBT community. Consider the evidence:

  1. Having hired two openly gay clerks during his tenure on the Tenth Circuit Court of Appeals.
  2. Being supportive of one of those clerks when he revealed his sexual orientation to the judge.
  3. Living in a liberal Colorado community and attending a gay-friendly Episcopal church.
  4. Displaying no indication, in his record on the Tenth Circuit, of overt hostility to LGBT rights.

There is much to be said for a nominee who is not prone to ranting about the “homosexual agenda,” and who has numerous clerks willing to speak to his independence and open-mindedness. Those prone to optimism might look to these data points as support for hope that on LGBT issues, Gorsuch will bear greater resemblance to Justice Anthony Kennedy, for whom Gorsuch clerked, than Justice Scalia, whose brand of originalism Gorsuch subscribes to. (Judicial politics scholars offer contrasting predictions of where a Justice Gorsuch would fall on the ideological spectrum.) But even if we accept these supportive characterizations of Judge Gorsuch, there are still compelling reasons for LGBT advocacy groups to be concerned.

  • The test of one’s commitment to rights is not whether you’d recognize those rights when claimed by people close to you. It’s whether you’d extend those rights to people you’ve never met and will never meet. It speaks well of Gorsuch that he has been supportive of gay work associates, and that he and his family did not treat a church’s LGBT-friendliness as a deal-breaker. But if his jurisprudence devalues marriages and enables states to treat LGBT individuals as second-class citizens, these examples of personal goodwill will offer little consolation to disfavored people who lack any personal tie to Gorsuch. (Remember, too, that Mary Cheney’s sexual orientation had no apparent impact on the gay-friendliness of George W. Bush’s policy agenda.)
  • It would be trivially easy for a Justice Gorsuch to say that while he personally favors LGBT rights, and would support them were he a legislator, his role on the bench is to interpret the law to the best of his ability, and not to enact his personal policy preferences. It’s a claim that plays well both in the Senate Judiciary Committee hearing room and the court of public opinion. Even legal realists who claim that this formalism is impossible to achieve in practice do not oppose it from a normative perspective. So even if the claims presented in the Times article reflect a lack of hostility to LGBT rights, the only inference one can clearly draw is that Gorsuch’s opinions will probably be devoid of Scalia-esque rhetorical salvos against gay rights and their advocates.
  • Gorsuch was part of the Tenth Circuit panel that held, in Hobby Lobby Stores v. Sebelius, that closely held for-profit corporations could legally claim, under the 1993 Religious Freedom Restoration Act, an exception from the Affordable Care Act’s requirement that their health insurance plans include contraception coverage. It hardly requires a great leap of logic to think that the vision of religious liberty espoused in Hobby Lobby would extend to cover legislation allowing for a religion-based exception to laws banning discrimination based on sexual orientation.

In short, those concerned about LGBT rights should look not to Gorsuch’s heart, but to his jurisprudential approach. That approach should give advocates cause for concern, even as they consider the poor odds that the current president and Senate majority propose a nominee whom LGBT advocates would prefer.

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