President Trump’s nominee for the U.S. Supreme Court, Neil Gorsuch, is a staunch defender of religious freedom, strict when it comes to courtroom rules, and more than a little suspicious of police and government. That’s what comes through from his selection of the Top Ten court decisions of his career in a response to the questionnaire from the U.S. Senate Judiciary Committee.
Gorsuch, currently a judge on the 10th Circuit Court of Appeals in Denver, listed his personal Top Ten in reverse chronological order. No. 1 is Gutierrez-Brizuela v. Lynch, a 2016 decision in which Gorsuch rejected the government’s attempt to use a new interpretation of immigration law to reject Hugo Rosario Guitierrez-Brizuela’s attempt to win legal residency. In the main ruling Gorsuch held that Guitierrez-Brizuela could rely on the 10th Circuit’s 2005 interpretation of immigration law regarding a 10-year waiting period for illegal immigrants, not a subsequent interpretation the government tried to enforce retroactively. The important part is Gorsuch’s unusual concurrence to his own opinion, in which he voices extreme skepticism about so-called Chevron deference in allowing agencies to determine the law, instead of courts.
Gorsuch also lists Hobby Lobby v. Sebelius, in which he joined the majority in allowing a retail chain with religious owners to sue the Obama administration over its requirement to provide contraception as an employee benefit under the Affordable Care Act. That case of course went to the Supreme Court as Burwell v. Hobby Lobby, where the conservative majority ruled in 2014 that the Religious Freedom Restoration Act — signed into law by President Bill Clinton in 1993 — prohibited the Obama administration from enforcing the contraceptive mandate. Gorsuch, in a concurrence to the 10th Circuit decision, went further than the majority to write that the Greens, owners of Hobby Lobby, faced “no less a choice between exercising their faith or saving their business.”
Gorsuch expressed similar support for freedom of religious exercise in Yellowbear v. Lampert, a 2014 decision upholding the right of a Native American inmate to sue prison officials for refusing him access to a sweat lodge.
In another Top Ten case, U.S. v. Carloss, Gorsuch wrote a lengthy dissent explaining why he thought police violated the Fourth Amendment by ignoring multiple “No Trespassing” signs to walk onto a suspect’s property to question him about a suspected firearms violation. “Our duty of fidelity to the law …requires us to respect the ancient rights of the people when law enforcement exceeds their limits,” he wrote.
In Kay Electric Coop. v. City of Newkirk, Gorsuch rejected so-called state-action immunity from federal antitrust laws for municipal governments. In this case the city of Newkirk, Okla. threatened to cut off a new jail’s sewer service unless it also bought electricity from the town, despite a lower bid from the Kay Electrical Cooperative. Without explicit authority from the state government, Gorsuch ruled, Newkirk was subject to the same laws as any other entity. The Supreme Court adopted similar reasoning in its 2013 decision FTC v. Phoebe Putney Health System, upholding the FTC’s lawsuit to block a merger of two Georgia public hospitals.
In his 2011 decision Lee v. Max Int’l, Gorsuch demonstrated his hard-line approach to procedural rules, upholding a lower court’s dismissal of a lawsuit after the plaintiff ignored three orders to produce evidence to the other side. “Our justice system has a strong preference for resolving cases on their merits whenever possible, but no one, we hold, should count on more than three chances to make good a discovery obligation.”
Gorsuch also listed his 2014 decision MHC Mutual Conversion Fund v. Sandler O’Neill, an otherwise dry business ruling that displays some of the wit he would bring to a court deprived of the snark of the late Justice Antonin Scalia. The case was about whether an underwriter could be held liable for an opinion as opposed to an objectively false statement of fact. Gorsuch ruled opinion wasn’t necessarily protected from liability, although in this case the plaintiff failed to prove its case. (The Supreme Court in its 2015 decision Omnicare v. Laborers District Council Fund reached the same conclusion.) But on the way to deciding MHC Mutual, Gorsuch, who has a Ph.D in legal philosophy from Oxford, engaged in a lengthy discussion about what makes a “true opinion”:
"Last year some of us fervently believed the Broncos would win the Super Bowl. In 2008, no doubt there were those who genuinely thought the market for mortgage backed securities would soon rebound."
It’s not enough, therefore, to show an opinion turned out wrong. “Life simply holds too many examples of earnestly held but spectacularly wrong predictions about the future to permit such an inferential leap,” he wrote, adding a footnote citing Lord Kelvin’s 1895 statement, “Heavier than air flying machines are not possible,” and Einstein’s “emphatic denial” in 1935 that atomic energy would be useful.
AFB EDITORIAL NOTE: If you support elevating a strong conservative to the Supreme Court, please contact your Senators TODAY and ask them to support Judge Neil Gorsuch for Supreme Court!