Less then a week into the job, Supreme Court Justice Neil Gorsuch will have his first chance, behind closed doors at least, to weigh in on voting rights. When the justices meet Friday for their private conference, the first since Gorsuch’s confirmation, among the cases that they will be considering whether to take up is an appeal of a landmark ruling striking down North Carolina’s mammoth restrictive voting law. The moment is an anxious one for voting rights advocates, who had seen a number of lower court victories on key cases in the months since the death of Justice Antonin Scalia and were cautiously optimistic that the Supreme Court was about to flip their way in time for them to cement that progress at the highest court. While it is unclear how Gorsuch is likely to rule on the major questions bubbling up in voting rights litigation, if he does represent the second coming of Scalia, as he has been billed by his supporters, then some of those intermediary wins are now at risk.
“There was some hope in the voting rights community, especially with a sympathetic Supreme Court, that courts would increasingly provide the role of being a back stop of more egregious limitations on voting rights,” Richard Hasen, a professor at UC-Irvine School of Law who also runs the Election Law Blog, told TPM. “Now all of that is off the table. “
The mood was quite different a year or even six months ago, after President Obama had chosen Judge Merrick Garland—a moderate who nonetheless would have shifted the court left in replacing Scalia— and when Hillary Clinton was viewed as likely to win the election.
As Hasen himself wrote in a New York Times op-ed last August, “the changing composition of the Supreme Court” meant that were “no longer five justices willing to uphold restrictive voting laws.” But that ground shifted significantly with President Trump’s surprise victory, coupled with the Senate GOP’s unprecedented blockade of Garland, which allowed Trump to chose Scalia’s successor instead.