In a decade of dissents, U.S. Supreme Court nominee Neil Gorsuch revealed a similarity to the late Antonin Scalia, sharing the justice’s skepticism of federal labor regulations, his zeal for individual privacy and his disdain for legislative history.
Gorsuch on March 20 will head to the U.S. Senate for his confirmation hearing, where his record as a federal appeals judge—his majority rulings and his dissents—will come under new scrutiny.
The late Justice William O. Douglas once said, “The right to dissent is the only thing that makes life tolerable for a judge on an appellate court.” If that’s true, Gorsuch, who sits on the U.S. Court of Appeals for the Tenth Circuit, has found satisfaction and solace in his 35 dissents.
A Gorsuch dissent is characterized by a careful, point-by-point refutation of the majority’s arguments. There is rarely any legal jargon. There are occasional clever turns of phrase—but they lack the bite for which Scalia was known. “I think sharpness is sometimes needed to demonstrate how much a departure I believe the thing is,” Scalia told one interviewer in 2013. Scalia often said he wrote dissents for law students—“they will read dissents that are breezy and have some thrust to him.”
Gorsuch, in one dissent last year, turned to Charles Dickens to make his point. Gorsuch, disagreeing with two colleagues, would not have granted qualified immunity to a police officer who arrested a 13-year-old student who disrupted classes with his burping.
“Often enough the law can be ‘a ass—a idiot’ … and there is little we judges can do about it,” Gorsuch wrote. He continued: “So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands—and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass as they do.”
Conservative groups will find much to like in Gorsuch’s dissents, and progressive groups that are opposed to Gorsuch’s nomination will find evidence to bolster their criticism. The liberal group People for the American Way, for instance, which conducted its own review of Gorsuch’s dissents, concluded they are “consistently right-wing, generally seeking to favor big business and other authority and harm the interests of workers and those who have suffered abuse by government officials.”
As is true of so many appellate judges’ work over a long period of time, their records are rarely as black and white as partisan groups often see them. Gorsuch’s work is no different. What follows are some takeaways gleaned from his dissents.
Gorsuch’s rulings and dissents in this area of the law are likely to receive attention from Democratic senators on the Senate Judiciary Committee. In two dissents last year, Gorsuch, with a sharp edge to his writing, sided with employers and against federal regulators on pay and safety issues.
Writing in National Labor Relations Board v. Community Health Services, Gorsuch rejected the board’s policy justifications for a significant change in its approach to awarding back pay to certain employees whose hours were improperly reduced. Before the change, interim earnings were deducted from back pay to avoid a windfall recovery, but no longer under the new rule. The majority deferred to the board.
“In the end, it’s difficult to come away from this case without wondering if the board’s actions stem from a frustration with the current statutory limits on its remedial powers—a frustration that it cannot pursue more tantalizing goals like punishing employers for unlawful actions or maximizing employment,” he wrote. “In our legal order the proper avenue for addressing any dissatisfaction with congressional limits on agency authority lies in new legislation, not administrative ipse dixit.”
In TransAM Trucking v. Administrative Review Board, the majority accused Gorsuch of taking a too narrow view of the word “operate” in the whistleblower provisions of the federal Surface Transportation Assistance Act. The story: A trucker waited more than three hours in freezing temperatures in an unheated truck for employer assistance after the brakes failed on his trailer. He was fired after disconnecting the trailer and driving off; he said his feet and legs were going numb. His employer had instructed him to drive the truck while pulling the trailer with the failed brakes.
“But that statute only forbids employers from firing employees who ‘refuse to operate a vehicle’ out of safety concerns,” Gorsuch wrote. “And, of course, nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle. … The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.”
Gorsuch dissented in Compass Environmental v Occupational Safety and Health Review Commission from the panel decision not to review a company’s appeal of a final order that found a serious safety violation. The commission found that the employer failed to train an employee, who was killed, to recognize and avoid the hazard presented by a high-voltage overhead power line at his worksite.
Gorsuch argued the commission failed to prove that “reasonably prudent employers in the industry would have done more to anticipate or train a trench hand for the accident than Compass did.”
In a Title VII issue, Strickland v. United Parcel Service, from 2009, Gorsuch agreed that Carole Strickland should get a new trial on her claim of retaliation under the Family and Medical Leave Act but not on her sex discrimination claim. The majority said Strickland’s male co-workers testified Strickland was treated by their supervisor differently from every male employee he supervised and she could present that evidence at a trial.
Gorsuch countered: “The difficulty is that the record in this case shows that Mr. Roten harassed male employees in very much the same manner as he harassed Ms. Strickland.”
No Fan of Legislative History
In United States v. Games-Perez, from 2012, Gorsuch, dissenting from a denial of rehearing en banc, took a swipe at legislative history. He criticized his colleagues’ failure to take up the question whether two provisions of the criminal code—which respectively prohibit possession of a firearm by a felon and set out the penalty for that criminal conduct—require that a prosecutor prove, for a conviction, that a defendant knew his status as a felon.
“And whatever the legislative history may or may not suggest about Congress’s collective ‘intent’ (putting aside the difficulties of trying to say anything definitive about the intent of 535 legislators and the executive, and putting aside as well the Langley dissent’s powerful rejoinders about Congress’s putative intent in this case), the law before us that survived the gauntlet of bicameralism and presentment couldn’t be plainer,” Gorsuch wrote.
Accommodation for Religion
Gorsuch, echoing Scalia and Justice Clarence Thomas, has voiced impatience with and dislike of the Supreme Court’s tests for when religious displays violate the establishment clause. He dissented from the denial of rehearing en banc in two cases where three-judge panels struck down a Ten Commandments display on a county courthouse lawn, and large white crosses on highways memorializing where state troopers were killed in the line of duty.
Some observers see Gorsuch as showing greater willingness to require government accommodation of religion in those two dissents as well as in his joining of a dissent to denial of en banc review in 2015 in Little Sisters of the Poor v. Burwell. In that case, a three-judge panel ruled that the Little Sisters’ exercise of religion was not substantially burdened by requiring it to file a government form to get an exemption from providing contraceptive health insurance.
Most of Gorsuch’s dissents were in criminal law.
Like Scalia, he showed concerns about attempts to erode Fourth Amendment privacy protection. In the 2016 case, United States v. Carloss, Gorsuch parted ways with the majority. His colleagues concluded that a police officer would not know “No Trespassing” signs on a homeowner’s property barred a “knock and talk” at the front door.
“In the government’s telling, its agents enjoy a special and irrevocable right to invade a home’s curtilage for a knock and talk—what might be more accurately called a sort of permanent easement—whatever the homeowner may say or do about it,” Gorsuch wrote. “This line of reasoning seems to me difficult to reconcile with the Constitution of the Founders’ design.”
While sympathetic to defendants in other suppression cases, he is not so sympathetic when considering claims of ineffective assistance of counsel under the Sixth Amendment. He dissented in four cases in which the majority granted relief.
In Williams v. Jones, a 2-1 panel in 2009 found ineffective assistance of counsel when the defendant’s lawyer told him that if he accepted a plea offer of 10 years in prison, the lawyer would quit. Concerned about if and when he could get a new lawyer, the defendant turned down the plea deal, went to trial and received a life sentence.
“No principle of justice rooted in our constitutional order entitles a defendant to receive, accept, or enforce a plea offer,” Gorsuch wrote, adding that the defendant had received a fair trial.
And in Hooks v. Workman, the three-judge panel in 2012 rejected most of death-row inmate Victor Hooks’ claims, but found his lawyer’s performance during sentencing “woefully inadequate” by presenting an “extraordinarily limited case in mitigation” and by vilifying the defendant before the jury. Gorsuch, however, dissented from the ineffective assistance ruling.
“Given the comparatively equivocal nature of the unproduced evidence in this case, it is hard to see how it would have mitigated for anyone on the jury the fact Mr. Hooks brutally beat his pregnant wife to death over the course of approximately two hours, leaving her body barely recognizable and his unborn child dead,” he wrote.
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