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Neil Gorsuch Sworn In As 9th Justice On The Supreme Court


And now there are nine.


NEIL GORSUCH: I, Neil M. Gorsuch, do solemnly swear, that I...

CORNISH: This morning, Neil Gorsuch was sworn in as a justice on the Supreme Court, finally filling the vacancy left by the death of Antonin Scalia more than a year ago. He took the judicial oath, administered by Justice Anthony Kennedy, at a ceremony at the White House Rose Garden.


GORSUCH: So help me God.

ANTHONY KENNEDY: Congratulations.


CORNISH: Justice Neil Gorsuch takes his seat in the middle of the current Supreme Court term. And to talk about what's ahead for him we're joined by NPR legal affairs correspondent Nina Totenberg. Welcome back, Nina.


CORNISH: So before we get into the cases that are up, Nina, why was it that it was Justice Kennedy who swore in Gorsuch today at the White House?

TOTENBERG: Well, Gorsuch clerked for him when he was just out of law school or pretty much out of law school. And they will be the first two boss and former employee who will serve together like that. There is a school of thought that says that President Trump picked Gorsuch in part to send a message to Justice Kennedy, who's 80, saying, you know, it's OK for you to retire. I will pick a solid judicial citizen, as I did this time. And conservative activist circles are abuzz with rumors that Kennedy's going to retire at the end of the term. I should say they're unconfirmed rumors.

CORNISH: So what can you tell us about what happens now with Gorsuch being added in this current term?

TOTENBERG: There are only 13 cases left to be argued, one argument round essentially, the final one. The most controversial of those is a separation of church and state case testing a state constitutional provision that bars any state aid, direct or indirect, to religious schools. About half of the states have constitutional provisions like this. And this case comes from Missouri. The state denied a grant to improve playground safety to a private Lutheran pre-K school. And the question is whether that amounts to unconstitutional discrimination against the church school.

CORNISH: But can a new justice actually vote in cases that have already been argued even if they're not yet decided?

TOTENBERG: No. Those were heard by a different court, as it were. So the new guy can't vote in cases he wasn't on the court for. But if there are tie votes in those cases the court would likely order them reargued next term. And then he could and would participate, and might very well cast the deciding vote.

CORNISH: So looking forward to next term, what's on the docket?

TOTENBERG: Well, even before the next term, I suppose the Trump administration travel ban could make it to the court. In addition, there are a number of issues waiting in the wings that the court could potentially hear. First, there are business owners who contend they have the right to refuse their services to gays and lesbians on religious grounds. Then, too, there are cases testing the extent of gun rights outside the home. Is there a right to carry a concealed weapon, for instance, or to carry a gun overtly?

And lastly, remember that in 2013, the Supreme Court, by a 5-4 vote, struck down a key provision of the Voting Rights Act. And within weeks, state legislatures mainly in Republican-dominated states began to enact new laws requiring certain forms of voter identification and laws that close polling places and cut back on early voting days. And critics say many of these provisions are aimed at specifically suppressing the minority vote. And those challenges could make it to the Supreme Court next term.

CORNISH: Nina, does Justice Gorsuch change the calculus for any of the really politically charged, super controversial issues - abortion, same-sex marriage, affirmative action?

TOTENBERG: Not unless Justice Kennedy or one of the liberal justices steps down, in which case there is no Senate filibuster left for the minority in the Senate to stop a Trump nominee. So in that event almost assuredly the balance of the court would tip pretty dramatically to the right.

CORNISH: That's NPR legal affairs correspondent Nina Totenberg. Nina, thank you.

TOTENBERG: Thank you, Audie. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.