In the past 25 or so years, since the infamous U.S. Senate debates on Robert Bork in 1987 and Clarence Thomas in 1991, confirmation hearings for U.S. Supreme Court justices have not been an exercise in enlightenment. You know how these things go: Senators grandstand and nominees display their superior intellects while politely (and often wittily) refusing to disclose anything even faintly controversial. I’m sure Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals will face angry questions from Senate Democrats about President Trump’s disdainful assessment of the federal judiciary, but I doubt we will learn anything substantive about Gorsuch’s judicial priorities.
But Judge Gorsuch’s own response to the Senate Judiciary Committee’s formal questionnaire does offer significant clues. The questionnaire asked the nominee to identify “the 10 most significant cases over which you presided.” Obviously, Judge Gorsuch didn’t preside over cases as a 10th Circuit judge, but he answered with a list of 10 cases in which he wrote opinions, usually for the appellate majority but sometimes a concurrence or dissent. Presuming that the judge regards these opinions – six in civil cases and four in criminal prosecutions – as his most significant writings, what can we learn from them?
The most obvious messages from the opinions are already well known: Judge Gorsuch is deeply skeptical of judicial deference to federal agencies and highly sympathetic to the free exercise of authentic religious beliefs. But the judge’s self-selected most significant decisions also show him protecting the rights of criminal defendants, calling out the U.S. Supreme Court for confusing precedent and endorsing trial judges’ power to manage their dockets. Overall, the opinions on the list – I’m sure by design – portray a thoughtful, confident judge without a predictable political ideology.
Judge Gorsuch’s first-listed case is Gutierrez-Brisuela v. Lynch, the 2016 immigration suit that prompted the judge’s now-famous concurrence spotlighting his constitutional separation-of-powers concerns with Supreme Court’s longstanding Chevron doctrine, which calls for courts to defer in most situations to federal agencies charged with administering laws. If you are inclined to read Gutierrez-Brisuela as Judge Gorsuch endorsing the judgment of federal courts, you’ll find additional support in another of the cases he put on his greatest hits list.
Gorsuch’s opinion in 2011’s Lee v. Max said a trial judge had not abused his discretion in dismissing a contract suit after the plaintiff repeatedly failed to produce discovery in defiance of court orders.
Two of the cases on Judge Gorsuch’s list show him standing up for religious freedom. One, as you doubtless know, went to the Supreme Court. In 2013’s Hobby Lobby v. Sebelius, the 10th Circuit ruled that the privately-held corporation could sue over the Affordable Care Act requirement that employers pay for employees’ contraceptive healthcare. In a concurrence, Gorsuch wrote that Hobby Lobby’s owners also have standing to sue because the ACA mandate requires them “to lend what their religion teaches to be an impermissible degree of assistance to the commission of what their religion teaches to be a moral wrong.”
Judge Gorsuch was equally solicitous of the religious rights of a Native American convicted of murdering his daughter in another of the cases he called his most significant. Gorsuch ruled in 2014’s Yellowbear v. Lampert that Andrew Yellowbear is entitled to engage in prayer and meditation in a sweat lodge erected on the prison grounds. “While those convicted of crime in our society lawfully forfeit a great many civil liberties, Congress has (repeatedly) instructed that the sincere exercise of religion should not be among them—at least in the absence of a compelling reason,” the judge wrote.
Nor is Yellowbear the only one of the judge’s self-selected greatest hits to challenge law enforcement officials. In U.S. v. Rentz, Judge Gorsuch held that a defendant could not be charged twice for carrying a firearm in the commission of a crime even though the shot Rentz fired killed two different people. I suspect Judge Gorsuch spotlighted the Rentz opinion as an example of his textualist philosophy. In the decision, he literally parsed the statutory language, like a middle school teacher teaching grammar by diagramming sentences. But when ambiguity remains, Judge Gorsuch said, courts have to side with “the presumptively free citizen.”
The judge seems to have nodded to Justice Antonin Scalia, whose seat Gorsuch has been nominated to fill, by including his 2016 opinion in U.S. v. Carloss on the “most significant” list. Justice Scalia was a staunch defender of Fourth Amendment restrictions on search and seizure. In Carloss, Judge Gorsuch said in a dissent that police officers did not have a right to step onto the front porch of a homeowner who had posted “no trespassing” signs at every entrance to her property.
Criminals don’t always get the benefit of statutory doubt in the cases Judge Gorsuch highlighted in his Senate questionnaire. In 2009’s U.S. v. Dolan, Judge Gorsuch rejected argument by a felon ordered to pay restitution under the Mandatory Victims Restitution Act to his victim, who suffered $100,000 in medical costs. The felon claimed he didn’t have to pay because the judge ordered restitution after the 90-day deadline specified in the act. Judge Gorsuch held that “while the 90–day deadline is surely a command of the act, it can be reasonably understood only as a subsidiary command to the act's primary and overriding directive that restitution must be ordered for certain crimes.”
Interestingly, Judge Gorsuch picked two opinions in which he gently groused about the Supreme Court’s confusing directives to lower courts. Gorsuch wrote the 10th Circuit’s 2015 opinion in Caplinger v. Medtronic, which ultimately upheld the dismissal of product liability claims by a woman who said she’d been implanted with a Medtronic bone growth device to treat a back condition for which the device was not approved. Along the way to that conclusion, Judge Gorsuch said the Supreme Court’s “competing instructions” in a string of opinions on federal pre-emption and medical devices had left lower courts with “no easy task” of interpretation. “It's no wonder that the difficulty of crafting a complaint sufficient to satisfy all these demands has been compared to the task of navigating between Scylla and Charybdis,” he wrote. “Certainly the task we face in trying to apply the court's directions faithfully feels something like that.”
Similarly, in 2011’s Kay Electric v. Newkirk, Judge Gorsuch pointed out gaps in the Supreme Court’s precedent on antitrust immunity for municipalities en route to holding the Oklahoma city of Newkirk was not immune from monopoly claims by an electricity cooperative. “If states are free from federal antitrust worries, what about the municipal agents they create and through which they often act? When the Supreme Court eventually took up this question, it conclusively answered it inconclusively, holding that a municipality sometimes may be sued under the Sherman Act and sometimes it may not,” Gorsuch wrote. “Our lot as a lower court isn't to choose between the Supreme Court's holdings but to apply them … though it's hard to see a way to reconcile all of the court's competing statements in this area.”
I can’t discern much of a message in the final case on Judge Gorsuch’s list of his most significant opinions, MHC Mutual v. Sandler O’Neill. In the 2014 ruling, the judge affirmed the dismissal of a securities class action based on alleged misrepresentations about a portfolio of mortgage-backed securities. The defendants said the misrepresentations were non-actionable opinions, so Judge Gorsuch’s opinion dissected the various ways in which investors might be able to sue over supposedly misleading opinions. He concluded that most plaintiffs’ theories fail, but investors might be able to move forward if they could show defendants offered opinions that purported to rest on an objectively reasonable basis but did not actually have a factual underpinning. (The MHC plaintiffs could not make that showing, the opinion said.) Gorsuch seems to have included the MHC case in his Senate response because the Supreme Court later adopted similar reasoning in its 2015 Omnicare decision.
After spending a long day immersed in Judge Gorsuch’s rulings, I can confirm one certainty about the judge: He is an elegant writer whose opinions have all the punch of Justice Scalia's but none of the occasional nastiness. The law will be a little more broadly accessible if he is confirmed.