Neil Gorsuch

  • February 23, 2017
    Guest Post

    by Louise Melling, Deputy Legal Director and Director of the Center for Liberty at the ACLU

    Religious freedom protects the right to our beliefs.  But does it protect the right of institutions to discriminate? The ACLU, staunch defender of religious liberty, says no. The answer for United States Supreme Court nominee Judge Neil Gorsuch appears to be yes. It is the province and duty of the Senate to press Judge Gorsuch on his stance during the confirmation hearings, as this question promises to be central to significant cases likely to come before Court in the near future.

    The opinions of the U.S. Court of Appeals for the Tenth Circuit that Judge Gorsuch joined and authored addressing Religious Freedom Restoration Act challenges to the contraceptive coverage rule of the Affordable Care Act raise troubling questions about his understanding of religious liberty, principles of equality, and their intersection.  Three points are worth noting.

    First, and most significant, in the Hobby Lobby case, the Tenth Circuit, ruling en banc, gave short shrift, and even embraced the harms, to women that would result were the rule enjoined as to Hobby Lobby.  The court acknowledged that women denied coverage (in that case to four methods of contraception) would suffer an economic burden, but went on to say, “Accommodations for religion frequently operate by lifting a burden from the accommodated party and placing it elsewhere.”   In other words, the court, with Judge Gorsuch joining, accepted that employees should bear the cost of their employer’s religion.

    That’s a position the Supreme Court declined to embrace in its Hobby Lobby decision. The Court affirmed the Tenth Circuit and ruled for the arts and crafts giant, but its ruling, unlike that of the Tenth Circuit, rested on the premise that the government could extend the accommodation it provided to religiously affiliated nonprofit entities to for-profit companies. Critically, that accommodation was designed to ensure that employees would continue to receive seamless coverage of contraception from the insurer. In the Court’s opinion, the effect then on “the women employed by Hobby Lobby … involved in these cases would be precisely zero.” The same cannot be said under the Tenth Circuit’s reasoning, which Judge Gorsuch joined.

  • February 7, 2017
    Guest Post

    by Adam Shah. Shah worked for D.C. nonprofits on issues related to the Supreme Court nominations of John Roberts, Harriet Miers, Samuel Alito, Sonia Sotomayor, and Elena Kagan.

    Over the weekend, President Trump went on a 2-day-long Twitter rampage against a Seattle-based federal judge who halted his executive order banning immigrants from seven Muslim-majority nations. Commentators have decried Trump for singling out a lone federal judge for attack, calling it an attack on the independence of the federal judiciary. This is true, but our federal judges are strong, life-tenured and can withstand harsh criticism without losing their commitment to making decisions based on law, not political considerations. 

    What should cause us worry, however, is the implications of Trump's attacks for his judicial nominees, including his Supreme Court nominee, Judge Neil Gorsuch. If Trump is so easily angered by a judicial ruling that blocks one of his orders, what is likely the most important criterion Trump has for his judicial nominees? Loyalty. 

    This, of course, is the worst litmus test a president could have. Presidents may not like it, but they know that their own nominees will rule against their actions at times; Supreme Court Justices Elena Kagan and Sonia Sotomayor did it to President Obama. Having federal judges who will stand up to even the president that appointed them is one of the hallmarks of our judicial system, and that independence would be destroyed if a president picked nominees based on their unwillingness to do that. 

  • February 7, 2017
    Guest Post

    *This piece originally appeared on Law360.

    by James J. Brosnahan, Senior Trial Counsel, Morrison Foerster

    As President Trump applies his whack-a-mole, hammer-them-all-on-the-head theory of leadership, could a Justice Neil Gorsuch legal philosophy join opinions that would declare the president’s actions unconstitutional? It is a lot to ask when the president has just given you the greatest legal gift America can bestow. But if the bestower actually holds up federal money from the University of California or sanctuary cities or does any other of the threatened unconstitutional actions in violation of established constitutional doctrine, the court will have to check and balance him as the country’s founders intended.

    Judge Gorsuch is, at times, a positivist. He is outside mainstream American judicial decision-making. I have looked at the headings and results in all 237 of his decisions. I read those that might reflect U.S. Supreme Court issues in the future — those cases I examined much more closely.

    When the words "Oxford degree" are first uttered in the confirmation hearing, it will have a mesmerizing effect on the senators. He got a degree in legal philosophy there in 2004. He studied under the tutelage of John Finnis, a natural-law theorist, who according to Google supports the Catholic Church on a range of contentious issues. Finnis believes the state should deter public approval of “homosexual” behavior. He opposes gay unions and believes they are an assault on heterosexual marriage. More to the point of Gorsuch’s legal philosophy, his teacher Finnis opposes looking for the “ought” in natural-law ethics. At the heart of all Western legal theory, there is the “is vs. ought” division; the United States Constitution is all about the ought.

  • February 6, 2017
    Guest Post

    *This piece originally appeared on the Whistleblower Protection Law Blog

    by Jason Zuckerman, Principal, Zuckerman Law

    If Judge Neil Gorsuch is confirmed, he will play a critical role in construing laws that protect worker health and safety, including laws protecting whistleblowers who suffer retaliation for opposing illegal or unsafe conduct that jeopardizes public health and safety. According to the Bureau of Labor Standards, 4836 workers were killed on the job in 2015—on average, that is more than 93 a week, or more than 13 deaths every day. As the Occupational Safety and Health Administration (OSHA) is already severely understaffed and will soon be further weakened by a political appointee charged with gutting it, the last thing workers need is an activist judge who has expressed disdain for worker-protection laws. But that is exactly what we can expect from Judge Gorsuch.

    In a recent dissent in TransAm Trucking, Inc. v. Administrative Review Board, 833 F.3d 1206 (10th Cir. 2016), Judge Gorsuch demonstrated that he will construe worker-protection laws as narrowly as possible and that he deems worker “health and safety” as “ephemeral and generic” statutory goals. His opinion also reveals that his alleged values-neutral approach to statutory construction is intellectually dishonest. The majority decision affirming the whistleblower’s win at the Department of Labor was based on the plain meaning of the statute, well-established precedent construing the statutory term at issue and the purpose of the statute. Judge Gorsuch’s dissent, however, was arguably activist in that it rewrites the statute. In other words, Judge Gorsuch does not check his policy preferences or values at the courthouse door and render value-neutral decisions based on the dictionary definitions of statutory terms. Instead, as this opinion demonstrates, his alleged strict textualism appears to be a cloak for his policy preferences, including his apparent disdain for worker protection laws.

  • February 6, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

    by Lara Schwartz, Former ACS Director of Strategic Engagement and Professorial Lecturer, SPA Honors Program Director and Adjunct Professor, Washington College of Law at American University

    After Judge James Robart of the U.S. District Court for the Western District of Washington issued an order halting enforcement of President Trump’s executive order on immigration, Trump took to Twitter, stating “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Opponents rightly sounded the alarm about this extraordinary disrespect for the judicial function and our Constitution. Sen. Chuck Schumer tweeted that it “shows a disdain for an ind. Judiciary that does not bend to his wishes & lack of respect for the Constitution.”

    This is not simply one more example of Trump’s thin-skinned attitude or his intolerance for dissent. It casts doubt on his capacity to fulfill his constitutional duty to nominate fair-minded, independent judges. Everything we know about Trump should lead us to believe he wants to nominate judges who will put loyalty to him above faithfulness to the law. This means any potential justice whom Trump would consider a satisfactory choice to fill the late Justice Scalia’s seat would be presumptively unfit.

    Trump introduced his nominee, 10th Circuit Judge Neil Gorsuch, to America just days after the executive order that “so-called” federal judges have halted. It is now incumbent upon Gorsuch to demonstrate that in spite of having earned Trump’s approval, he is an independent thinker who can keep his oath to uphold our Constitution and not, in the words of Molly Ivins, to “dance with them what brung” him.