Recently confirmed Supreme Court nominee Neil Gorsuch will be thrown into the middle of the 2017 oral argument season with the Court’s April hearings calendar beginning on April 17^th.  One of the first questions that has already generated speculation is how Gorsuch will rule on cases this Term.

This post adds some insight into how Gorsuch will rule based on application of Gorsuch’s previous dissents and concurrences to issues before the Court.  The use of separate rather than majority opinions is purposeful – judges only write separate opinions on their own volition and often without input from other judges.  These separate opinions are then some of the best snapshots we have of judges’ individual preferences and understandings of the law.

To get a sense of the issues Gorsuch examined in separate opinions while on the 10^th Circuit I ran topic modeling software over seventy-two of Gorsuch’s dissents and/or concurrences.  As you need to specify the number of topics the software aggregates, I ran models for between five and ten sets of topics and settled on seven as a number that organizes the topics into fairly recognizable themes.  The software provides the topic as well as a hierarchy of cases which fall within each set of topics but not an organizing principle.  The organizing principle or category for a set of topics is up to the user’s discretion.  Below are the user specified categories with the topics:

1.Employment: Zamora, tucker, plaintiffs, Colorado, clause, case, computer, discrimination, evidence, employer

2.Arrest: federal, majority, force, claim, case, officers, plaintiff, military, claims, holding

3.Statutory Interpretation: congress, statute, rule, district, statutory, rules, cases, judge, appeal, time

4.Trial: evidence, trial, defendant, state, rule, claim, plea, counsel, occa, federal

5.Religion: reasonable, county, observer, test, clause, religion, public, case, religious, display

6.Federalism/Case: state, government, law, supreme, district, judicial, case, standing, general, constitution

7.Search and Seizure: law, amendment, fourth, government, case, fact, officer, argument, question, reasonable

Next are the top cases under each category based on Gorsuch’s separate opinions along with case synopses from the opinions.

• Zamora v. Elite Logistics [Employment] “Plaintiff-Appellant Ramon Zamora sued his former employer, Defendant-Appellee Elite Logistics, Incorporated (“Elite”), under Title VII of the Civil Rights Act, alleging Elite discriminated against Zamora because of his race and national origin”
• Cortez v. McCauley [Arrest] “We granted rehearing en banc primarily to consider under what circumstances, if any, an excessive force claim is subsumed in an unlawful arrest claim.”
• United States v. Hinckley [Statutory Interpretation] “Defendant-Appellant Shawn Lloyd Hinckley appeals from his conviction for failing to register pursuant to the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250, enacted July 27, 2006”
• Wilson v. Workman [Trial] “After holding the evidentiary hearing, the district court ruled that Defendant had failed to establish that his trial counsel had performed deficiently or that counsel’s alleged failures had affected the outcome of the penalty phase”
• Green v. Haskell County Bd. of Comm’rs [Religion] “At issue is a recent addition to the lawn-a block of stone that is approximately eight feet tall and three feet wide, with the Ten Commandments inscribed on one side and the Mayflower Compact on the other.”
• Hobby Lobby Stores, Inc. v. Sebelius [Federalism/Case] “This case requires us to determine whether the Religious Freedom Restoration Act and the Free Exercise Clause protect the plaintiffs—two companies and their owners who run their businesses to reflect their religious values”
• United States v. Carloss [Search and Seizure] “Defendant-Appellant Ralph Carloss contends that two police officers violated the Fourth Amendment by knocking on his front door, seeking to speak with him”

To understand Gorsuch’s decision-making processes for the cases during the April sitting, the next step is linking the topics to the set of Supreme Court cases, looking at how Gorsuch reasoned in similar cases while on the 10^th Circuit, and applying this reasoning to the Supreme Court cases.

1. Category: Case/Standing

Supreme Court Case

Town of Chester v. Laroe Estates, No. 16-605

Question: “Whether intervenors participating in a lawsuit as of right under Federal Rule of Civil Procedure 24(a) must have Article III standing (as three circuits have held), or whether Article III is satisfied so long as there is a valid case or controversy between the named parties (as seven circuits have held).”

10^th Circuit Cases and reasoning from Gorsuch’s opinions

• Kerr v. Hickenlooper – Here Gorsuch dissented that judicially manageable standards were not present: “To date, the plaintiffs have declined to 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”
• Hobby Lobby Stores, Inc. v. Sebelius – Gorsuch did not see reason to deny standing based on the prudential standing doctrine, “Congress’s directive seems clear on its face — the text expressly tells us to apply the rules of standing under Article III and makes no mention of prudential (non-Article III) standing rules. In this way, the plain language seems to suggest prudential standing doctrine failed to make its way into RFRA.”

Application

This is a close call. If Gorsuch takes a broad stance on the standing issue in the case he will decide in favor of the respondent/intervenors.  As the respondents in this case ask the Court to go outside of traditional Article III standing the petitioner’s argument may be a better fit under the rubric Gorsuch applied.

2. Category: Trial

Supreme Court Cases

• Weaver v. Massachusetts, No. 16-240

Question: “Whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel’s ineffectiveness.”

• Davila v. Davis, No. 16-6219

Question: “Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.”

• McWilliams v. Dunn, No. 16-5294

Question: “Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.”

10^th Circuit Cases and reasoning from Gorsuch’s opinions

• Wilson v. Workman – “One may well complain that the OCCA’s adjudicative procedures are unjust, and argue that ineffective assistance claims cannot be fairly decided without reference to evidence outside the trial court record.See  Op. at 1294. But even assuming this is true, Congress supplied a solution for the problem in AEDPA’s text. In subsection (b), Congress indicated that a petitioner need not exhaust any state procedure that is “ineffective to protect the rights of the applicant.”
• Williams v. Jones – “The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial. By his own admission, Michael Williams received just such a trial, at the end of which he was convicted of first degree murder by a jury of his peers. We have no authority to disturb this outcome.”
• Hooks v. Workman – “In raising these concerns, I hardly mean to suggest that competent counsel shouldn’t be provided in the lingering cases where Atkins is enforced through collateral proceedings. Indeed, counsel in these circumstances clearly serve a critical function, and the State of Oklahoma recognized as much by providing Hooks with a lawyer in his Atkins proceeding. A lawyer who, this acknowledges, met every standard the Constitution might conceivably command even in a pre-conviction setting. See Murray, 492 U.S. at 14-15 (Kennedy, J., concurring in the judgment) (observing that “[t]he requirement of meaningful access can be satisfied in various ways,” including through state initiatives).”

Application

While on the 10^th Circuit, Gorsuch generally ruled in favor of the government’s position on such issues. This does not necessarily mean he will do so based on the facts in this set of Supreme Court cases but it does set up a strong possibility that he will side with the respondent in each of these three cases.

3. Category: Religion / Establishment Clause

Supreme Court Case

Trinity Lutheran Church of Columbia v. Comer, No. 15-577

Question: “Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.”

10^th Circuit Cases and reasoning from Gorsuch’s opinions

• Green v. Haskell County –“Whatever test we are supposed to apply, or the number of its prongs, the Supreme Court’s central message in McCreary and Van Orden was that public displays focusing on the ideals and history of a locality do not run afoul of the Establishment Clause just because they include the Ten Commandments.”
• American Atheists, Inc. v. Davenport – “Our court has now repeatedly misapplied the “reasonable observer” test, and it is apparently destined to continue doing so until we are told to stop. Justice O’Connor instructed that the reasonable observer should not be seen as “any ordinary individual, who might occasionally do unreasonable things, but … rather [as] a personification of a community ideal of reasonable behavior.”

Application

This case has the potential to split the Justices across ideological lines. If this is the case, Gorsuch could play a pivotal role. His previous decisions tend to move against findings of Establishment Clause violations.  If the Justices split and Gorsuch votes accordingly we may see a 5-4 decision in this case (if this happens and Chief Justce Roberts assigns the majority opinion to Gorsuch this may be quite an important opinion for him early in his Supreme Court tenure).

4. Statutory Interpretation

Supreme Court Cases

• Henson v. Santander Consumer, 16-349

Question: Whether a company that regularly attempts to collect debts it purchased after the debts had fallen into default is a “debt collector” subject to the Fair Debt Collection Practices Act.

• Kokesh v. Securities and Exchange Commission, No. 16-529

Question: Whether the five-year statute of limitations in 28 U.S.C. § 2462 applies to claims for “disgorgement.”

• Amgen Inc. v. Sandoz Inc., 15-1195

Questions: (1) Whether a biosimilar applicant is required by 42 U.S.C. § 262(l)(2)(A) to provide the reference product sponsor with a copy of its biologics license application and related manufacturing information, which the statute says the applicant “shall provide;” and (2) whether, where an applicant fails to provide that required information, the sponsor’s sole recourse is to commence a declaratory judgment under 42 U.S.C. § 262(l)(9)(C) and/or a patent-infringement action under 35 U.S.C. § 271(e)

10^th Circuit Cases and reasoning from Gorsuch’s opinions

United States v. Hinckley “When interpreting a statute, we begin with the words Congress has chosen. If, taking account of its context, that language is clear, our inquiry ends where it began, and we enforce the statute’s plain meaning.”

United States v. Nichols “As written, the statute demonstrates Congress thought that past offenders could “warrant different federal registration treatment” than future offenders. Id. Even among pre-Act offenders, the statute contemplates the possibility of “different federal registration treatment of different categories of pre-Act offenders.” Id.”

Application

Gorsuch is known for holding statutory language in primary regard as is apparent in the above two cases.  To gauge how Gorsuch might lean in these Supreme Court cases I reviewed the arguments in the briefs. Santander, respondent in Henson, makes a compelling textual argument in its brief,

“In short, there is no valid policy justification for deviating from the plain text of the statute. The court of appeals correctly held that, because respondent owned the debts at issue, it was not attempting to collect debts “owed or due * * * another” and thus could not qualify under the second category of “debt collector” in the FDCPA.”

In Kokesh both sides turn to the Congressional text in their briefs.  While on the 10^th Circuit, Gosuch expressed views supporting minimalist application of administrative deference (to agencies like the SEC) in cases like TransAm Trucking v. Administrative Review Board:

“But, respectfully, my colleagues do not cite any precedent for the notion that the absence of a statutory definition is enough to render a statutory term ambiguous — and I am aware of none. In fact, there are countless cases finding a statute unambiguous after examining the dictionary definition of its terms.”

Then combine such views with arguments from the Petitioner’s brief like this one:

“In his dictionary’s first edition, Webster defined “forfeiture” as “the losing of some right … or effects, by an offense, crime, breach of condition or other act.” Noah Webster, An American Dictionary of the English Language 86 (1828). Other contemporary definitions are similar.”

Although both sides in Kokesh have arguments based on the plain language of the statute, the petitioner appears to have a particularly strong argument to direct towards Gorsuch.

In the Amgen case, Amgen has a strong argument based on the statutory language as is apparent in its brief:

“In enacting the BPCIA, Congress abandoned such discretionary language and replaced it with a series of commands. This Court “ordinarily will not assume that Congress intended ‘to enact statutory language that it has earlier discarded in favor of other language.’” Chickasaw Nation v. United States, 534 U.S. 84, 93 (2001).”

The strength of this argument may tip the scales for Gorsuch in favor of Amgen both as petitioner in this case and as respondent in Sandoz Inc. v. Amgen Inc., No. 15-1039.

Gorsuch’s separate opinions from the 10^th Circuit provide us with insights on how he might rule in these eight Supreme Court cases as well as in others.  This is not to say that these applications will direct Gorsuch’s reasoning in these cases – only that they shed light on how he has previously reasoned on similar issues.  Whether as a Supreme Court Justice he is consistent with his past views as 10^th Circuit judge (a post where he was not bound by precedent in the same manner) remains to be seen.

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On Twitter: @AdamSFeldman