Speculation is abound regarding President Trump’s pick for Supreme Court nominee, Judge Neil Gorsuch. Questions range from: “Who is he?” and “How will he rule” to the more specific “Will he help overturn Roe v. Wade.” While answers to the last two questions are anyone’s guess, answers to the first may shed light on all three. Just a note to wary liberals, Judge Gorsuch is filling Justice Scalia’s seat so don’t expect much of a rightward shift in the Court until and unless Trump fills another vacancy. Many currently speculate that Gorsuch is very similar to Scalia in judicial philosophy, although judicial scholars are keen to point out Gorsuch’s differing and less deferential approach to executive agencies in the sphere of administrative law.
Other points that have been noted over the past few days are Gorsuch’s openness to religious liberty arguments, a pro-business stance, and a loose approach to Eighth Amendment objections to the death penalty. Even if he holds these positions consistently on the Supreme Court, none of them would significantly change the Court’s jurisprudence. The Court has upheld religious liberty objections to the Affordable Case Act with decisions like Burwell v. Hobby Lobby, the Roberts Court is consistently defined as pro-business, and Justice Scalia was a regular proponent of the death penalty in his decisions.
Beyond this Gorsuch has received praise from attorneys as well as pundits on the left and right, while he has drawn fire from several groups on the left such as Lambda Legal and the ACLU for rulings that are antithetical to their policy positions. While his confirmation hearings should stir up rancor from the left, especially in the wake of the failure to even hold Senate hearings for Merrick Garland, without a smoking gun (bigger than his Columbia year book photo) there should not be much of a fight on the Senate floor.
What we know about Judge Gorsuch can mainly be gleaned from his judicial (and extrajudicial) writings and decisions. To that end this post makes use of his experience as a judge on the Tenth Circuit to give a sense of how he might judge on the Supreme Court.
The Broad Outlook
First some context for the Tenth Circuit where Judge Gorsuch presided out of Denver, Colorado. Judge Gorsuch sat on over 2,700 panels with other circuit judges. The frequencies with which he sat with the other judges on the circuit are displayed below.
Of the top five Judges on the list, only Judge Lucero was appointed by a democrat (President Clinton). The other four top judges in this figure were appointed by President George W. Bush who also appointed Judge Gorsuch. As a very general heuristic this bodes well for panel consensus.
Based on available data from federal dockets several private law firms were repeat players in cases where Judge Gorsuch was on the panel. These include the following firms in order of their frequencies:
These are mostly local firms. Holland & Hart is a multiple office firm of just under 200 lawyers based out of Denver, Colorado, Hall & Evans is a smaller multiple office firm also based out of Denver, Rodey Dickason is a based out of Albuquerque, New Mexico, Hall Estill and Collins Zorn are based in Oklahoma City, Fisher Patterson is based out Kansas, and Pope & Associates as well as Crowe & Dunlevy are both based in Oklahoma.
In terms of the types of cases Judge Gorsuch has hepled decide, the vast majority were in criminal law and related areas as the following figure shows:
Judge Gorsuch’s take on criminal that has been described as hard-lined, and these views may have become entrenched with these majority of cases he sat on. He also has vast case experience judging other issues that often come before the Supreme Court ranging from civil rights, cases affecting the government, and those dealing with constitutional issues. This experience should mean he has at least fairly deep-rooted views on many of these issues that should be discernible from his opinions. These opinions provide more clarity regarding Judge Gorsuch’s positions in cases that he has decided.
Judge Gorsuch wrote 175 majority opinions on the 10th Circuit. While it is difficult to say one is more important than another, one way to parse out important cases is through the number of times they have been cited. The following figure shows Judge Gorsuch’s ten opinions cited the most in judicial opinions:
A bit about each case:
• Nasious v. Two Unknown B.I.C.E. Agents (2007) was a civil rights case where Judge Gorsuch overruled a district court’s denial of an action from an inmate for constitutional violations on the grounds that the district court did not properly abide by the rules for dismissing an action based on failure to follow the pleading rules.
• Andrews v. Heaton (2007) dealt with an allegation from an accused of a criminal conspiracy involving members of the federal judiciary. Judge Gorsuch affirmed the lower court’s decision giving the judges absolute immunity against monetary damages and dismissing the complaint.
• Dudnikov v. Chalk Vermilion (2008) was a copyright action based on an alleged infringement by and against sellers on E-Bay. The decision examined aspects of civil procedure, choice of law, as well as copyright law. Judge Gorsuch overturned the case dismissal from the district court.
• Johnson v. Weld County (2006) was an action for sex and disability discrimination against an employer. The Gorsuch opinion held that there was a valid non-discriminatory reason that the employee was not hired to the job in question. Judge Gorsuch affirmed the lower court’s ruling in favor of the employer.
• Van Deelen v. Johnson (2007) regarded a taxpayer lawsuit alleging that the taxpayer was threatened by local officials to drop tax assessment challenges. Judge Gorsuch decided in favor of the taxpayer and denied qualified immunity to the local officials.
• Richison v. Ernest Group (2011) examined a claim brought by a former employee that he was fooled into forfeiting shares of a company where he previously worked. Judge Gorsuch upheld the case dismissal.
• Hill v. Kemp (2007) was a First Amendment taxpayer challenge against means of acquiring license plates including those that stated “Choose Life” and “Adoption Creates Families.” Although Gorsuch upheld dismissal of several of the claims, his opinion held that prospective relief was possible under the Eleventh Amendment.
• Young v. Dillon Cos. (2006) was another Title VII employment action based on employment termination where Judge Gorsuch held for the employer.
• Prost v. Anderson (2011) looked at a prisoner’s claim to vacate a money laundering sentence. The decision in the case upheld the district court’s ruling denying the inmate’s habeas corpus motion.
• Porro v. Barnes (2010) was an action brought by an immigration detainee against jail employees alleging excessive force for an incident that involved the use of a stun-gun. Judge Gorsuch affirmed the lower court’s ruling against the detainee holding that the stun-gun use and policy behind it were both permissible.
The outcomes of these cases support the conventional wisdom that Judge Gorsuch may be pro-business and employer and tough on crime.
Another way to analyze Judge Gorsuch’s positions is by looking at when he dissented from 10th Circuit decisions. Here are instances where Judge Gorsuch authored dissenting opinions. Below I look briefly at Judge Gorsuch’s position in each case:
• Ragab v. Howard (2016): dissenting that arbitration clauses should have been upheld even with conflicting provisions
• Planned Parenthood Ass’n of Utah v. Herbert (2016): this was a dissent in denial of an en-banc hearing where Judge Gorsuch argued the rehearing was warranted based on an earlier decision providing an injunction against having a state government official in charge of disbursing federal funds to the organization.
• TransAm Trucking v. Administrative Review Board (2016): Anti-Chevron deference (deference to agency) dissent. Includes the statements, “But, respectfully, it seems to me Chevron is a curious place to turn for support given that the Department never argued the statute is ambiguous, never contended that its interpretation was due Chevron step two deference, and never even cited Chevron. In fact, the only party to mention Chevron in this case was TransAm, and then only in a footnote in its brief and then only as part of an argument that the statute is not ambiguous. We don’t normally make arguments for litigants (least of all administrative agencies), and I see no reason to make a wholly uninvited foray into step two of Chevron land.”
• Webb v. Thompson (2015): dissent that Correctional Officers deserved qualified immunity in case dealing with an illegal strip search and prolonged detention.
• United States v. Carloss (2016): dissent that a “no trespassing” sign should revoke any implied license for knock and talk under Fourth Amendment protections.
• NLRB v. Cmty. Health Servs. (2016): Another anti-administrative deference dissent that the NLRB did not give proper explanation for its decision to side with union in suit against hospital for reducing employees’ hours.
• United States v. Spaulding (2015): criminal procedure case in which Judge Gorsuch dissents that a court should have allowed the withdrawal of an involuntary plea when the government joined the request rather than forcing the court to wait for a full or collateral appeal
• United States v. Nichols (2015): this was another dissent in denial of an en-banc hearing where Judge Gorsuch argued that the Sex Offender Registration and Notification Act’s (SORNA) stipulation that prosecutors can define crimes to enforce runs afoul of the separation of powers.
• Kerr v. Hickenlooper (2014): this was another dissent in denial of an en-banc hearing expressing justiciability concerns about courts intervening in disputes brought by plaintiffs that do not, “advance any test for determining when a state constitutional provision requiring direct democracy on one subject (here, taxes) does or doesn’t offend the [Guarantee Clause].”
• New Mexico Off-Highway Vehicle Alliance v. U.S. Forest Service (2013): dissenting from the court’s decision affirming a denial of intervention by the Forest Service on behalf of environmental groups based on circuit precedent.
• United States v. Nicholson (2013): dissenting that when an officer made a mistake in a stop the court should correct for the mistake and allow for a remand rather than extending the Fourth Amendment’s exclusionary rule.
• United States v. Dutton (2013)– dissenting that the good faith exception to the Fourth Amendment should apply to a flawed search affidavit unless it is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” which was not the case here.
• United States v. Games-Perez (2012): dissenting from a denial of an en-banc hearing based on an originalist reading of the text that the court improperly applied the criminal statute.
• Hooks v. Workman (2012): dissenting from the portion of the holding that the accused had a constitutional right to counsel at a post-conviction hearing.
• United States v. Benard (2012): agreeing with most of the decision but dissenting against the limited potential application of the harmless error test articulated by the majority.
• United States v. Rosales-Garcia (2012): a dissenting analysis that the court should adhere to the language of the sentencing guidelines rather than the guidelines’ commentary.
• Compass Envtl., Inc. v. OSHRC (2011): another dissent expressing disagreement with the agency’s approach and thus asserting that a petition for review should have been granted.
• Am. Atheists, Inc. v. Duncan (2010): dissenting from the denial of an en banc hearing in a First Amendment Establishment Clause case where the court held that roadside crosses may be construed as an impermissible endorsement of religion.
• Flitton v. Primary Residential Mortg. (2010): dissenting from the portion of the opinion that the court lacked jurisdiction to award court fees arguing that the case law the majority relied upon did not stand for the premise that fees should not be allowed.
• United States v. Raymond (2010): dissenting that the district court applied the wrong legal standard to dismiss charges against one of the defendants and arguing that the murder charges should have been reinstated.
• Williams v. Jones (2009): dissenting from a denial of an en-banc hearing by arguing that the court should not have allowed a retrial under the Sixth Amendment based on a lawyer’s error in a case where the defendant admitted he received a fair trial and where the conviction was supported by the evidence.
• Wilson v. Workman (2009): looking at the words of the habeas corpus statute and arguing that the deferential standard (to state courts) should have been applied and the court should not have engaged in de-novo review
• Green v. Haskell County Bd. of Comm’rs (2009): dissenting from the denial of a rehearing en banc arguing that a display of the Ten Commandments display did not offend Lemon’s endorsement test when placed alongside ornaments of national and cultural history.
• Williams v. Jones (2009): dissenting that where a defendant admits to having a fair trial, there should be no retrial under the Sixth Amendment due to a deficient performance by the attorney.
• United States ex rel. Belt Con Constr., Inc. v. Metric Constr. Co. (2009): dissenting that unreliable hearsay did not constitute the “reasonable certainty” required by law for proof of damages.
• Strickland v. UPS (2009): dissenting that a finding of gender discrimination was unwarranted because it lacked support from direct or circumstantial evidence that the treatment arose from circumstances that conveyed unlawful discrimination.
• United States v. Ford (2008): dissenting that where a suppressed e-mail showed that the defendant did not initiate a conversation with an informant, the suppression denied the defendant a fair trial.
• Pace v. Swerdlow (2008): arguing that the district court’s decision could have been affirmed on other grounds and so the court was wrong to determine that it was improper based on one error.
• Abilene Retail # 30, Inc. v. Bd. of Comm’rs (2007)- dissenting from denial of rehearing en banc and arguing that due to the importance of the case and the existent circuit splits the court should have granted the petition in this case dealing with judicial deference to legislative judgments.
• United States v. Cos (2007): dissenting that the court should not have heard this appeal because the equitable tolling deadline for a notice of appeal had passed before the notice was filed.
• WWC Holding Co. v. Sopkin (2007): arguing in dissent that the majority used arguments to support its position that the appellant never made in court and that the majority was not in a position to rule in this manner without hearing arguments from the litigants.
• Cortez v. McCauley (2007): disagreeing with the majority on several points and analyses relating to qualified immunity and probable cause where the majority found against law enforcement in an action by a plaintiff claiming excessive force and unlawful arrest.
These dissents strongly corroborate the depictions of Judge Gorsuch as a jurist that often supports claims predicated on religious liberty, appeals to the text of statutes and the Constitution, and shies away from deference to executive agencies. There is also a slew of criminal cases in these dissents and Judge Gorsuch’s arguments are not exclusively against the accused in these instances. Judge Gorsuch’s dissents, while not dispositive of how he will rule on the Supreme Court, give a sense of his judicial and interpretive philosophies as well as his possible positions on issues that he may confront on the Court if confirmed.
On Twitter: @AdamSFeldman