Legal Corner: Neil Gorsuch, the Newest U.S. Supreme Court Justice

Christina Estes-Werther, League General Counsel

On April 6, 2017, the U.S. Senate, by a vote of 54-45, confirmed Neil Gorsuch as an associate justice on the U.S. Supreme Court filling the vacancy that resulted from the death of Justice Antonin Scalia in early 2016. Prior to his appointment, Neil Gorsuch was serving as a judge on the U.S. Court of Appeals for the Tenth Circuit, appointed by President George W. Bush in 2006. President Trump nominated Neil Gorsuch to the U.S. Supreme Court in January and following confirmation hearings and a Senate vote, he was sworn in on April 10, 2017. As a U.S. Supreme Court justice, he is appointed for life and at the age of 49, he is one of the youngest jurists to serve on the U.S. Supreme Court.

Following his nomination by President Trump, it appeared that the Democrats would filibuster to block the confirmation vote. Three-fifths of the majority (60 votes) was required to end the debate (known as cloture) and since the Republicans only had 52 votes, the majority party employed the "nuclear option," and changed the Senate parliamentary rule and ended the debate by a simple majority vote. This permanent rule change allowed the Senate to confirm Neil Gorsuch the following day.

Now that Justice Gorsuch has been confirmed, he will begin his formal duties later this month. Traditionally the newest justice is referred to as the "junior justice" and in addition to his responsibilities on the bench, Justice Gorsuch must also assume some grunt jobs- the role of note taker and door monitor in meetings with the other justices, and he is designated to hear the grievances regarding the court's cafeteria. These "hazing" activities have been described as helping the newest justice remain humble in light of being appointed to such an extraordinary position.

Education and Work History
Justice Gorsuch was born on August 29, 1967 and according to the U.S. Supreme Court, he was born in Denver, Colorado and he is married with two daughters. He received a B.A. from Columbia University, a J.D. from Harvard Law School, and a Doctorate in Philosophy from Oxford University.

He began his legal career as a law clerk to three judges, including Justices Byron White and Anthony M. Kennedy of the U.S. Supreme Court. He then worked in private practice for ten years prior to becoming the Principal Deputy Associate Attorney General at the U.S. Department of Justice. In 2006 he was appointed to the Tenth Circuit. Additionally he has taught ethics and antitrust law at the University of Colorado Law School.

Gorsuch's Decisions
Many commentators have remarked on the similarities between Justice Gorsuch and his predecessor Justice Scalia, which may indicate that the court's opinions may not substantially deviate from when Justice Scalia was on the bench. Justice Gorsuch shares a similar legal approach and writing style as Justice Scalia and he is known as a textualist - relying on the text and structure of the law when deciding cases rather than his own personal opinions or policy considerations. His judicial philosophy has garnered criticism based on his dissent in TransAm Trucking v. Dept. of Labor also known as the "frozen trucker" case because he agreed with the employer who fired an employee for abandoning his trailer after the employee began exhibiting symptoms of hypothermia after waiting hours for a repair truck. Justice Gorsuch admitted the termination may not have been wise or kind, but in his opinion it was legal.

Justice Gorsuch has also demonstrated his support for religious liberty in his opinions in Hobby Lobby Stores v. Sebelius and Little Sisters of the Poor Home for the Aged v. Burwell where he opined that religious beliefs of a company's owners and clergy should be accommodated under the religion clause of the U.S. Constitution and federal law. Similar to Justice Scalia, he has also been described as being friendlier to criminal defendants rather than prosecutors in order to avoid criminalizing the innocent. In United States v. Games-Perez Justice Gorsuch argued that the plain language of the law requires the government to prove that the mens rea requirement applies to all elements of the statute including that the government has the burden of proving that the defendant has knowledge of his status as a felon in addition to the knowledge that he possessed a gun. Justice Gorsuch argued that it is "a grave injustice to imprison a person without requiring proof of his guilt under the written laws of the land" and it is difficult to determine how a person might knowingly violate all elements of the law if the government fails to prove all the substantive elements of the crime. Justice Gorsuch has also been described as a protector of privacy under the Fourth Amendment. In United States v. Carloss, he opined in his dissent that the homeowner's "no trespassing" sign was sufficient to revoke implied consent and prevent a police officer from entering the property.

Additionally, Justice Gorsuch does not favorably view the dormant (or negative) commerce clause, which restricts a state from passing laws that improperly burden or discriminate against interstate commerce. As a textualist, he has stated that the clause is not in the U.S. Constitution and therefore is not applicable. For example, in his concurring opinion in Direct Marketing Association v. Brohl, he indicated his dislike for being bound by Quill Corp. v. North Dakota, which restricts states from imposing sales and use tax collection duties on companies that do not have a physical presence in the state. Although he's been bound by precedent in the past, he is now in a position to overrule Quill and possibly change the application of the dormant commerce clause.

Although Justices Gorsuch and Scalia share many views, one difference that may result in a more favorable outcome for cities and towns relates to the rules and regulations promulgated by federal agencies. Justice Gorsuch has suggested that the Supreme Court reconsider its decision in Chevron v. NRDC, which defers to a federal agency's interpretations of ambiguous statutes and centralizes the power of federal agencies (often to the detriment of state and local governments). Although he has not specifically stated that he would overturn the decision, Justice Gorsuch's criticism of Chevron has led many to believe that if given an opportunity he will attempt to lessen the regulatory power of federal agencies.

With a full nine-member court, the remaining term will likely produce more definitive decisions and avoid the impasses that resulted from the year-long vacancy. For more information about the newest associate justice and his impact on the court, please see additional resources below.

What Might Justice Gorsuch Mean For States and Local Governments by Lisa Soronen

Potential Nominee Profile: Neil Gorsuch by Eric Citron

Afternoon Roundup: Neil Gorsuch Sworn In As Associate Justice by Andrew Hamm

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