The Gorsuch Files

Donald Trump's Supreme Court nominee is a conservative's conservative.

Neil Gorsuch. National Law Journal.

Eleven years ago, as Neil Gorsuch waited to be confirmed to the United States Court of Appeals for the Tenth Circuit, his nomination was deemed so uncontroversial that only one senator turned up to what ended up being a twenty-minute hearing.

The grueling months-long confirmation process he’s about to experience will likely be very different. Now, Gorsuch is not only readying himself to step into Antonin Scalia’s shoes, he’s also preparing to claim what many liberals regard as Merrick Garland’s rightful place, after Republican obstructionism killed President Obama’s ill-fated nomination before it had even been announced.

Combined with Gorsuch’s status as Donald Trump’s first judicial nominee and the fact that his confirmation would tip the court’s ideological balance back to the right, this history promises to make his nomination a bruising spectacle.

Scalia Jr

In Neil Gorsuch, Trump seems to have found his exact opposite: articulate, intelligent, and seemingly temperate.

The Ivy League–educated Gorsuch clerked for two Supreme Court justices, including Anthony Kennedy, a current occupant. In 1995, he joined the DC law firm Kellogg, Huber, Hansen, Todd, Evans & Figel, serving as a corporate lawyer for ten years before joining the Bush administration’s Justice Department. In 2006, Bush nominated him to the tenth circuit, and, at age thirty-nine, he became one of the youngest federal appeals court judges.

Gorsuch’s name may sound vaguely familiar. His mother, Anne Gorsuch (later Burford), ran the EPA under Reagan, with disastrous results. Rather than serving as a steward of the environment, she saw her new role as smoothing the path for the private sector and creating a more “efficient” agency. She decimated the EPA with layoffs and budget cuts, crushed staff morale, and made it impossible for the agency to do its job. She resigned after being held in contempt of Congress for refusing to submit subpoenaed documents.

Aside from his mother, the individual whose name most appears next to Neil Gorsuch’s is Scalia himself, offering some clues to the nominee’s judicial philosophy. Gorsuch was a huge Scalia fan, so much so that he told an audience of law students last year that upon learning of the justice’s death while skiing, he was overwhelmed with tears all the way down the mountain.

As he outlined his idol’s legacy to the crowd, Gorsuch essentially described his own judicial philosophy:

Legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future . . . [but] judges should instead strive . . . to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood it to be.

An “assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function,” he explained.

Just like Scalia, Gorsuch approaches the law as a textualist and originalist, believing it must be interpreted strictly as it would have been by those who wrote it and that one must pay attention to the statute’s words rather than its legislative history.

As he explained in one opinion, the judge “interpret[s] the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.”

This makes Gorsuch an ideal candidate to fulfill Trump’s promise to “appoint judges very much in the mold of Scalia.” In fact, a study measuring the “Scalia-ness” of Trump’s shortlist gave Gorsuch the second highest score of 0.74. (The highest, 2.86, went to Utah Supreme Court justice Thomas Lee; William Pryor, Trump’s other potential nominee, ranked third with 0.65).

Gorsuch and Scalia share more than judicial philosophies. Like Scalia, Gorsuch has a reputation for writing entertaining, eminently readable opinions that average readers can access. In fact, according to one legal news outlet, rumor had it that Gorsuch would “have his law clerks add contractions to his opinions, to make himself sound more folksy — and therefore more appealing as a possible SCOTUS nominee.”

A last similarity: like Scalia, and the rest of the Supreme Court, Gorsuch is very wealthy. According to his 2006 financial statement (available here), he was worth more than $3 million, including an annual salary of $1.4 million from Kellogg Huber. Today, his assets could total as much as $7.3 million including investments, membership in a company that owns a mountain property, his salary as an adjunct professor at the University of Colorado Law School, and a (comparatively) small amount from book royalties.

This means that if Gorsuch is confirmed, the highest court in the land — making far-reaching decisions on a wide variety of issues that impact ordinary Americans — will continue to be a millionaires’ club.

Reading Between the Lines

Unlike Scalia, Gorsuch does not write in fiery invectives nor does he broadcast his conservatism. His dissents tend to be reasoned and respectful. While Scalia walked right up to the line of a judicial ethics violation by attending Koch-sponsored events and fundraisers for the conservative Federalist Society, Gorsuch has kept a relatively low profile throughout his career.

Nonetheless, Gorsuch has left clues about his conservatism throughout his career.

Gorsuch has donated to Republican officeholders. He gave a total of $2,250 to George W. Bush from 2000–3, $250 each to John McCain and the RNC in 2000, and $300 to ethically challenged former Tennessee senator and cat-killer Bill Frist. These are small amounts, but they indicate his politics’ general orientation.

Additionally, according to Gorsuch’s 2006 confirmation questionnaire, he “participated in groups such as Lawyers for Bush-Cheney,” which consisted of conservative lawyers who aided both the legal battle over the 2000 Florida recount and the 2004 Republican campaign. He has ties to the Chamber of Commerce, revealing in the same disclosure that he prepared amicus briefs on behalf of the pro-business interest group in two cases. He also has links to the Federalist Society and spoke at two of the organization’s events.

In 2005, just before his nomination to the court of appeals, Gorsuch penned an op-ed for the National Review warning that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda.”

He argued that using the courts to make policy meant that “ideas are tested only in the abstract world of legal briefs and lawyers’ arguments,” losing “the flexibility of social experimentation” provided by elected branches, and cautioned that such an approach could engender a “backlash” from the public.

Patrick Leahy challenged him on this during the 2006 confirmation process, and Gorsuch clarified that “the point of the article can be applied to groups of all kinds across the political spectrum.” Indeed, cases like Hobby Lobby, Fisher v. University of Texas, and the repeated legal challenges to the Affordable Care Act show that conservatives have enthusiastically adopted this strategy.

A Conventional Conservative

Getting a firm grasp on Gorsuch’s beliefs is difficult. It largely requires plumbing his decisions and opinions while scoping out his rare public statements — and even then, it’s possible to come up empty-handed.

The picture that emerges is largely that of a conventional conservative judge with mostly concerning but some encouraging tendencies.

The Left should worry about Gorsuch’s views on “religious freedom” — or rather, on the right of religious organizations to avoid government rules that mandate providing contraception in their health insurance plans, which he has upheld in two key cases. For example, as he wrote in his concurring opinion for Hobby Lobby Stores, Inc. v. Sebelius:

It is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes “too much” moral disapproval on those only “indirectly” assisting wrongful conduct.

It’s harder to discern Gorsuch’s views on abortion. He has not had to rule on the issue, but what little information exists suggests a pro-life stance.

He opposes euthanasia and assisted suicide and authored a respected and densely researched book on the legal debate over the subject. There, he described his belief in the “inviolability” of human life and that “the intentional taking of human life by private persons is always wrong.”

In his Hobby Lobby opinion, Gorsuch wrote that “no one before us disputes” that the ACA compelled employers “to underwrite payments for drugs or devices that can have the effect of destroying a fertilized egg” — except that this is scientifically untrue. Many anti-abortion activists, however, conflate contraception with abortion.

Gorsuch’s opposition to class-action lawsuits should also worry us. At a 2004 Federal Trade Commission Workshop, he argued that these lawsuits tend to be unfair, because they “can mean the destruction of” the defendants’ companies, so they “have to buy peace even” in cases with “less than fully meritorious claims.”

He used more forceful language in an op-ed a year later, decrying “the free ride to fast riches enjoyed by securities class action attorneys” and bemoaning the “billions of dollars in settlements” lost by businesses each year.

During his 2006 confirmation, Gorsuch clarified he only aimed at “improving their efficiency,” and when asked about his advocacy for restricting plaintiffs’ ability to bring securities fraud cases and limiting corporations’ liability for misconduct, he claimed he had “represented the interests of my clients alone, not my own.”

And while it remains unclear if Gorsuch shares his mother’s burn-it-all-down philosophy toward regulations, he has demonstrated hostility to them over the years. He argued in one speech that “too much and too much inaccessible law can lead to executive excesses,” warning of a “paper blizzard” of laws. In one stinging opinion, he criticized the Centers for Medicare & Medicaid Services for “wind[ing] up confused about its own law.”

In perhaps his most famous decision, he criticized the so-called Chevron deference, which gives executive agencies wide scope to interpret “ambiguous” statutes, which the Guardian warns “would significantly weaken the federal government and allow the courts to override agency actions on issues ranging from immigration to health care to the environment.”

Finally, some of Gorsuch’s writings suggest that, on one of the fundamental issues of the day — the colossal amounts of money being poured into elections by large corporations — he stands quite apart from most of the country. Striking down an inequitable Colorado campaign finance law, Gorsuch suggested that political contributions are a “fundamental right,” restrictions on which demand “strict scrutiny” from the courts. The Center for Competitive Politics, an anti-campaign-finance-regulation organization, liked the wording.

Gorsuch’s stance puts him at odds with not just campaign-era Trump — who built much of his campaign around anger at wealthy donors — but also the public, including Trump’s voters. For nearly two decades, a majority of Americans have supported limiting money’s influence on politics.

Unexpected Decisions

At the same time, Gorsuch has at times lived up to his 2006 claim that “I resist pigeonholes” because “people do unexpected things.”

Despite his early hostility to class-action suits, in 2015, he reversed a decision that had taken $700 million in compensation away from thirteen thousand Coloradoans whose land had been contaminated with radioactive plutonium by Dow Chemical and Rockwell International.

“This long lingering litigation deserves to find resolution soon,” he wrote. “We can imagine only injustice flowing from any effort to gin up the machinery of trial for a second pass over terrain it took fifteen years for the first trial to mow through.”

Although Chuck Schumer charged that Gorsuch “has repeatedly sided with corporations over working people” — a mostly accurate statement — several cases show the opposite.

In one, he upheld an earlier decision ordering a mining company to pay compensation to a longtime worker who had black lung, despite the worker’s smoking habit. He also reversed a decision that ended government support for an injured worker who had healed physically, noting that he also had a history of debilitating depression and anxiety.

The areas in which Gorsuch is surprisingly decent — and also most likely to clash with the Trump administration — are privacy rights and use of authority.

In one Scalia-esque dissent, Gorsuch criticized the police for doing a “knock and talk” on a house with several “no trespassing” signs, deeming it an unreasonable search.

Elsewhere, he criticized law enforcement for using a radar device to determine if people were inside a house about to be searched or raided and issued several unpopular decisions where he affirmed the privacy rights of plaintiffs engaged in distributing child pornography, in one case deeming accessing the email a “search.”

Gorsuch, true to his regulation-suspicious roots, has also spoken out against “over-criminalization.” He wrote a blistering dissent against a decision upholding the New Mexico police’s decision to arrest a student who interrupted PE class by fake burping, technically a crime under one of the state’s laws.

“If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do?” he wrote. “Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old-school. Maybe today you call a police officer.”

There is still some reason for concern, however. In one case, decided just last year, Gorsuch ruled that police could use evidence they gathered from a GPS tracker they placed on a suspect’s car without a warrant. In another, basing his decision on the Supreme Court’s direction to lower courts to give broad protection to police officers — all who aren’t “the plainly incompetent or those who knowingly violate the law” — he upheld a lower court’s decision to throw out an excessive force suit against an officer who hit a man in the head with a stun gun, killing him.

Blocking Gorsuch

In nominating Gorsuch, Trump may be aiming for one of two outcomes: choose a well-respected, intellectually rigorous conservative nominee who can only be voted down on ideological grounds in order to get votes from centrist and conservative Democrats. Once confirmed, Gorsuch will shift the court to the right, while also, at only forty-nine years old, remain a conservative influence for decades to come.

Alternately, he may have selected this more temperate nominee to bait the Democrats into rejecting him, allowing Trump and the GOP to paint the Democrats as irresponsible extremists.

If it’s the latter, Trump has little to worry about. While acting as obstructionists worked very well for Republicans under Obama, the Democrats seem unlikely to adopt this tack.

But they have every reason to.

Even if Neil Gorsuch is no Robert Bork, his confirmation deserves strong opposition.