Neil Gorsuch

Gorsuch served as a judicial clerk for Judge David B. Sentelle of the United States Court of Appeals for the D.C. Circuit from 1991 to 1992, and then for Supreme Court Justices Byron White and Anthony Kennedy from 1993 to 1994.[21][28][35] Gorsuch's work with White occurred right after White retired from the Supreme Court; therefore, Gorsuch assisted White with his work on the Tenth Circuit, where White sat by designation.[21] Gorsuch was part of a group of five law clerks assigned that year which included Brett Kavanaugh who described Gorsuch at the time stating: "He fit into the place very easily. He's just an easy guy to get along with. He doesn't have sharp elbows. We had a wide range of views, but we all really got along well."[36]

Instead of joining an established law firm, Gorsuch decided to join the two-year-old boutique firm Kellogg, Huber, Hansen, Todd, Evans & Figel (now Kellogg, Hansen, Todd, Figel & Frederick), where he focused on trial work.[14] After winning his first trial as lead attorney, a jury member told Gorsuch he was like Perry Mason.[14] He was an associate in the Washington, D.C., law firm from 1995 to 1997 and a partner from 1998 to 2005.[21][37] Gorsuch's clients included Colorado billionaire Philip Anschutz.[38] At Kellogg Huber, Gorsuch focused on commercial matters, including contracts, antitrust, RICO, and securities fraud.[21]

In 2002, Gorsuch penned an op-ed criticizing the Senate for delaying the nominations of Merrick Garland and John Roberts to the United States Court of Appeals for the District of Columbia Circuit, writing that "the most impressive judicial nominees are grossly mistreated" by the Senate.[39]

In 2005, at Kellogg Huber, Gorsuch wrote a brief denouncing class action lawsuits by shareholders. In the case of Dura Pharmaceuticals, Inc. v. Broudo, Gorsuch opined that "The free ride to fast riches enjoyed by securities class action attorneys in recent years appeared to hit a speed bump" and that "the problem is that securities fraud litigation imposes an enormous toll on the economy, affecting virtually every public corporation in America at one time or another and costing businesses billions of dollars in settlements every year".[37]

Gorsuch served as Principal Deputy to the Associate Attorney General, Robert McCallum, at the United States Department of Justice from 2005 until 2006.[21][28] As McCallum's principal deputy, Gorsuch assisted in managing the Department of Justice's civil litigation components, which included antitrust, civil, civil rights, environment, and tax divisions.[21]

While managing the United States Department of Justice Civil Division, Gorsuch was tasked with all the "terror litigation" arising from the president's War on Terror, successfully defending the extraordinary rendition of Khalid El-Masri, fighting the disclosure of Abu Ghraib torture and prisoner abuse photographs, and, in November 2005, traveling to inspect the Guantanamo Bay detention camp.[40]

Gorsuch helped Attorney General Alberto Gonzales prepare for hearings after the public revelation of NSA warrantless surveillance (2001–07), and worked with Senator Lindsey Graham in drafting the provisions in the Detainee Treatment Act which attempted to strip federal courts of jurisdiction over the detainees.[41]

Gorsuch advocates a broad definition of religious freedom that is inimical to Church–State separation advocates.[49][50][51]

In Hobby Lobby Stores v. Sebelius (2013), Gorsuch wrote a concurrence when the en banc circuit found the Affordable Care Act's contraceptive mandate on a private business violated the Religious Freedom Restoration Act.[52] That ruling was upheld 5–4 by the Supreme Court in Burwell v. Hobby Lobby Stores, Inc. (2014).[53] When a panel of the court denied similar claims under the same act in Little Sisters of the Poor Home for the Aged v. Burwell (2015), Gorsuch joined Judges Harris Hartz, Paul Joseph Kelly Jr., Timothy Tymkovich, and Jerome Holmes in their dissent to the denial of rehearing en banc.[54] That ruling was vacated and remanded to the Tenth Circuit by the per curiam Supreme Court in Zubik v. Burwell (2016).[53]

In Pleasant Grove City v. Summum (2007), he joined Judge Michael W. McConnell's dissent from the denial of rehearing en banc, taking the view that the government's display of a donated Ten Commandments monument in a public park did not obligate the government to display other offered monuments.[55] Most of the dissent's view was subsequently adopted by the Supreme Court, which reversed the judgment of the Tenth Circuit.[53] Gorsuch has written that "the law [...] doesn't just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation's long-held aspiration to serve as a refuge of religious tolerance".[56]

Gorsuch has called for reconsideration of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), in which the Supreme Court instructed courts to grant deference to federal agencies' interpretation of ambiguous laws and regulations. In Gutierrez-Brizuela v. Lynch (2016), Gorsuch wrote for a unanimous panel finding that court review was required before an executive agency could reject the circuit court's interpretation of an immigration law.[57][58]

Alone, Gorsuch added a concurring opinion, criticizing Chevron deference and National Cable & Telecommunications Ass'n v. Brand X Internet Services (2005) as an "abdication of judicial duty", writing that deference is "more than a little difficult to square with the Constitution of the framers' design".[59][60]

In United States v. Hinckley (2008), Gorsuch argued that one possible reading of the Sex Offender Registration and Notification Act likely violates the nondelegation doctrine.[61] Antonin Scalia and Ruth Bader Ginsburg had held the same view in their 2012 dissent of Reynolds v. United States.[62]

Gorsuch has been an opponent of the dormant Commerce Clause, which allows state laws to be declared unconstitutional if they too greatly burden interstate commerce. In 2011, Gorsuch joined a unanimous panel finding that the dormant Commerce Clause did not prevent the Oklahoma Water Resources Board from blocking water exports to Texas.[63] That ruling was affirmed by a unanimous Supreme Court in Tarrant Regional Water District v. Herrmann (2013).[64]

In 2013, Gorsuch joined a unanimous panel finding that federal courts could not hear a challenge to Colorado's internet sales tax.[65] That ruling was reversed by a unanimous Supreme Court in Direct Marketing Ass'n v. Brohl (2015).[64] In 2016, the Tenth Circuit panel rejected the challenger's dormant commerce clause claim, with Gorsuch writing a concurrence.[66]

In Energy and Environmental Legal Institute v. Joshua Epel (2015), Gorsuch held that Colorado's mandates for renewable energy did not violate the commerce clause by putting out-of-state coal companies at a disadvantage.[67] Gorsuch wrote that the Colorado renewable energy law "isn't a price-control statute, it doesn't link prices paid in Colorado with those paid out of state, and it does not discriminate against out-of-staters".[68][69]

In Riddle v. Hickenlooper (2014), Gorsuch joined a unanimous panel of the Tenth Circuit in finding that it was unconstitutional for a Colorado law to set the limit on donations for write-in candidates at half the amount for major party candidates.[70] Gorsuch added a concurrence where he noted that although the standard of review of campaign finance in the United States is unclear, the Colorado law would fail even under intermediate scrutiny.[71]

In Planned Parenthood v. Gary Herbert (2016), Gorsuch wrote for the four dissenting judges when the Tenth Circuit denied a rehearing en banc of a divided panel opinion that had ordered the Utah governor to resume the organization's funding, which Herbert had blocked in response to a video controversy.[72][73]

In A.M., on behalf of her minor child, F.M. v. Ann Holmes (2016), the Tenth Circuit considered a case in which a 13-year-old child was arrested for burping and laughing in gym class. The child was handcuffed and arrested based on a New Mexico statute that makes it a misdemeanor to disrupt school activities. The child's family brought a federal 42 U.S.C. § 1983 (civil rights) action against school officials and the school resource officer who made the arrest, arguing that it was a false arrest that violated the child's constitutional rights. In a 94-page majority opinion, the Tenth Circuit held that the defendants enjoyed qualified immunity from suit.[74] Gorsuch wrote a four-page dissent, arguing that the New Mexico Court of Appeals had "long ago alerted law enforcement" that the statute that the officer relied upon for the child's arrest does not criminalize noises or diversions that merely disturb order in a classroom.[74][75][76]

In 2009, Gorsuch wrote for a unanimous panel finding that a court may still order criminals to pay restitution even after it missed a statutory deadline.[77] That ruling was affirmed 5–4 by the Supreme Court in Dolan v. United States (2010).[64]

In United States v. Games-Perez (2012), Gorsuch ruled on a case where a felon owned a gun in violation of 18 U.S.C. § 922(g)(1), but alleged that he did not know that he was a felon at the time. Gorsuch joined the majority in upholding the conviction based on Tenth Circuit precedent. However, he filed a concurring opinion arguing that said precedent was wrongly decided: "The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force."[78] In the 2019 case Rehaif v. United States, the Supreme Court overruled this decision with Gorsuch joining.

In 2013, Gorsuch joined a unanimous panel finding that intent does not need to be proven under a bank fraud statute.[79] That ruling was affirmed by a Supreme Court unanimous in judgment in Loughrin v. United States (2014).[64] In 2015, Gorsuch wrote a dissent to the denial of rehearing en banc when the Tenth Circuit found that a convicted sex offender had to register with Kansas after he moved to the Philippines.[80] The Tenth Circuit was then reversed by a unanimous Supreme Court in Nichols v. United States (2016).[64]

Gorsuch favors a strict reading of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).[53] In 2015, he wrote for the court when it permitted Oklahoma attorney general Scott Pruitt to order the execution of Scott Eizember, prompting a thirty-page dissent by Judge Mary Beck Briscoe.[81][82] After the state's unsuccessful execution of Clayton Lockett, Gorsuch joined Briscoe when the court unanimously allowed Attorney General Pruitt to continue using the same lethal injection protocol. That ruling was upheld 5–4 by the Supreme Court in Glossip v. Gross (2015).[83]

During his tenure on the United States Court of Appeals for the Tenth Circuit, Gorsuch authored 212 published opinions.[84] Some of those are the following opinions:

Gorsuch at the LBJ Presidential Library in 2019

Gorsuch wrote his first U.S. Supreme Court decision for a unanimous court in Henson v. Santander Consumer USA Inc., 582 U.S. ___ (2017). Gorsuch and the Court ruled against the borrowers, holding that Santander in this case is not a debt collector under the Fair Debt Collection Practices Act since they purchased the original defaulted car loans from CitiFinancial for pennies on the dollar, making Santander the owner of the debts and not merely an agent.[108] When the act was enacted, regulations were put on institutions that collected other companies' debts, but the act left unaddressed businesses collecting their own debts.[109][110]

Gorsuch joined the majority in National Institute of Family and Life Advocates v. Becerra, and Janus v. AFSCME, which both held unconstitutional certain forms of compelled speech.[111][112]

In 2017, in Pavan v. Smith, the Supreme Court "summarily overruled" the Arkansas Supreme Court's decision to deny same-sex married parents the same right to appear on the birth certificate.[113] Gorsuch wrote a dissent, joined by Thomas and Alito, arguing that the Court should have fully heard the arguments of the case.[114]

In 2020, Gorsuch wrote the majority opinion in the combined cases of Bostock v. Clayton County, Altitude Express Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, ruling that businesses cannot discriminate in employment against LGBTQ people. Gorsuch argued that discrimination based on sexual orientation was illegal discrimination on the basis of sex, because the employer would be discriminating "for traits or actions it would not have questioned in members of a different sex".[115]

The ruling was 6–3 with Gorsuch being joined by Chief Justice Roberts and the court's four Democratic appointees.[116][117] Justices Thomas, Alito, and Kavanaugh dissented from the decision, arguing that it improperly extended the Civil Rights Act to include sexual orientation and gender identity.[118]

In October 2020, Gorsuch agreed with the justices in an "apparently unanimous" decision to deny an appeal from Kim Davis, a county clerk who refused to issue marriage licenses to same-sex couples.[119]

Gorsuch joined Justice Thomas's dissent from denial of certiorari in Peruta v. San Diego County, in which the Ninth Circuit had upheld California's restrictive concealed carry laws.[120]

Gorsuch dissented from the denial of an application for a stay presented to Chief Justice John Roberts in the United States Court of Appeals for the District of Columbia Circuit case Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives (2019), a case challenging the Donald Trump administration's ban on bump stocks. Only Gorsuch and Clarence Thomas publicly dissented.[121]

In Sessions v. Dimaya, the Supreme Court ruled 5–4 to uphold the Ninth Circuit's decision that the residual clause in the Immigration and Nationality Act was unconstitutionally vague. Gorsuch joined Justices Kagan, Ginsburg, Breyer, and Sotomayor in the opinion, as well as authoring a separate concurring opinion reiterating the importance of the vagueness doctrine within Justice Scalia's opinion in Johnson.[122]

In December 2018, Gorsuch dissented when the Court voted against hearing cases brought by the states of Louisiana and Kansas to deny Medicaid funding to Planned Parenthood.[123] Gorsuch, along with Justice Alito, joined the dissent authored by Justice Thomas, arguing that it was the court's job to hear the case.[124]

In February 2019, Gorsuch sided with three of the court's other conservative justices voting to reject a stay to temporarily block a law restricting abortion in Louisiana.[125] The law that the court temporarily stayed, in a 5–4 decision, would require that doctors performing abortions have admitting privileges in a hospital.[126] In June 2020, the Supreme Court struck down Louisiana's abortion restriction in June Medical Services, LLC v. Russo, a 5-4 decision; Gorsuch was among the four dissenting justices.[127][128]

In March 2019, Justice Gorsuch departed from his four fellow conservative justices, joining the four more liberal Justices (in two plurality opinions) in a 5–4 majority in Washington State Dept. of Licensing v. Cougar Den, Inc.[129] The Court's decision sided with the Yakama Nation, striking down a Washington state tax on transporting gasoline, on the basis of an 1855 treaty in which the Yakama ceded a large portion of Washington in exchange for certain rights.[130] In his concurrence, which was joined by Justice Ginsburg, Gorsuch ended his opinion by writing: "Really, this case just tells an old and familiar story. The State of Washington includes millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The state is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do."[131]

In May 2019, Gorsuch again joined the four more liberal justices in a decision favorable to the treaty rights of Native Americans, signing onto Justice Sotomayor's opinion to reach a 5-4 decision in Herrera v. Wyoming. This case held that hunting rights in Montana and Wyoming, granted by the U.S. government to the Native American Crow people by an 1868 treaty, were not extinguished by the 1890 grant of statehood to Wyoming.[132]

In July 2020, Gorsuch again joined the liberal justices to make a 5-4 majority in McGirt v. Oklahoma in a decision, written by Gorsuch, that found that "For Major Crimes Act purposes, land reserved for the Creek Nation since the 19th century remains 'Indian country.'"[133][134] In the majority case opinion, Gorsuch wrote, "Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word."[134]

In July 2020, the Supreme Court ruled, in two separate 7-2 decisions in Trump v. Vance that the Manhattan district attorney could access President Trump's tax records, but returned the case of Congressional access to the lower courts, pending the outcome of that case.[135] Justice Gorsuch joined Roberts, Kavanaugh, and the four Democratic appointees in the majority in both cases while justices Thomas and Alito dissented from the decisions.[135][136]

FiveThirtyEight used Lee Epstein et al.'s Judicial Common Space scores[139] (which are not based on a judge's behavior, but rather the ideology scores of either home state senators or the appointing president) to find a close alignment between the conservatism of other appellate and Supreme Court judges such as Brett Kavanaugh, Clarence Thomas, and Samuel Alito.[140] The Washington Post's statistical analysis estimated that the ideologies of most of Trump's announced candidates were "statistically indistinguishable" and also associated Gorsuch with Kavanaugh and Alito.[141]

Gorsuch in 2019

In a 2016 speech at Case Western Reserve University, Gorsuch said that judges should strive to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.[142]

In a 2005 article published by National Review, Gorsuch argued that "American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda" and that they are "failing to reach out and persuade the public". Gorsuch wrote that, in doing so, American liberals are circumventing the democratic process on issues like gay marriage, school vouchers, and assisted suicide, and this has led to a compromised judiciary, which is no longer independent. Gorsuch wrote that American liberals' "overweening addiction" to using the courts for social debate is "bad for the nation and bad for the judiciary".[44][143]

Gorsuch was described by Justin Marceau, a professor at the University of Denver's Sturm College of Law, as "a predictably socially conservative judge who tends to favor state power over federal power". Marceau added that the issue of states' rights is important since federal laws have been used to reel in "rogue" state laws in civil rights cases.[144]

In July 2006, Gorsuch's book, The Future of Assisted Suicide and Euthanasia, which was developed from his doctoral thesis, was published by Princeton University Press.[5][145][146][147]

In the book, Gorsuch makes clear his personal opposition to euthanasia and assisted suicide, arguing that the U.S. should "retain existing law [banning assisted suicide and euthanasia] on the basis that human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong."[56][146][148]

Gorsuch has been considered to follow in Scalia's footsteps as a textualist in statutory interpretation of the plain meaning of the law.[149][150] This was exemplified in his majority opinion for the landmark case Bostock v. Clayton County, Georgia (590 U.S. ___ (2020)) which ruled that Title VII of the Civil Rights Act of 1964 grants protection from employment discrimination due to sexual orientation and gender identity. Gorsuch wrote in the decision "An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."[151][152][153]

Justice Neil Gorsuch is the first member of a mainline Protestant denomination to sit on the Supreme Court since the retirement of John Paul Stevens in 2010.[161][162][163] He also has ties to Catholicism. Neil and his two siblings, brother J.J. and sister Stephanie, were raised Catholic and attended weekly Mass. Neil Gorsuch later attended Georgetown Preparatory School, a Catholic Jesuit school in North Bethesda, Maryland, from which he graduated in 1985.[14][17][18][19] Gorsuch's wife, Louise, is British-born; the two met while Neil was studying at Oxford. Louise was raised in the Church of England.[164] The two married at St. Nicholas' Anglican Church in Henley-on-Thames.[165]

When the couple returned to the United States they started attending Holy Comforter, an Episcopal parish in Vienna, Virginia, where he also volunteered as an usher.[163] Church records indicate that the Gorsuches were members of Holy Comforter. He later attended St. John's Episcopal Church in Boulder, Colorado, considered a liberal church because it kept an open-door policy for the LGBT community prior to legislation establishing gender preference equality laws.[4][166][167] The Episcopal Church and the Church of England are both members of the Anglican Communion, which considers itself to be both Catholic and Reformed but rejects papal authority.[168][169] After marrying in a non-Catholic ceremony and joining an Episcopal church, Gorsuch has not publicly stated if he considers himself a Catholic who is also a Protestant or simply a Protestant.[170]