As you now know, Neil Gorsuch has been nominated to fill Justice Scalia’s open Supreme Court seat. Where does he stand, and will we (you) like him at the end of the day? We hope to help you judge for yourself. During what will be a tumultuous confirmation process, we hope this article will help you determine whether the process is unfolding fairly or unfairly, particularly in light of what will likely be a little Democratic pay-back given Republicans refusal to consider President Obama’s Supreme Court pick.
Firstly, we note that Gorsuch has interestingly commented on the confirmation process: “Some of the most 
impressive judicial nominees are grossly mistreated.” Time will tell if he was right or wrong with respect to his own process. And, in a similar reverent view of another Judge, Gorsuch took special pleasure in remembering the justice who first hired him as a law clerk, Byron White: “I began my legal career working for Byron White,” he said, “the last Coloradan to serve on the Supreme Court — and the only justice to lead the N.F.L. in rushing.” Finally, with respect to judges, and a hint of what’s to come, Gorsuch appears to share the conservative philosophy of Justice Scalia as articulated in a speech last year.
“The great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future, ” he said. “But that judges should do none of these things in a democratic society.”
Although Gorsuch does not have extensive writing on the issues of the day, he has become known for his strong stands in favor of religious freedom. There are several key cases from his time on the federal appeals court which give indications of how he would influence Supreme Court hearings.
Two of his recent notable cases made their way to the Supreme Court, Hobby Lobby Stores v. Sebelius and Little Sisters of the Poor Home for the Aged v. Burwell. Gorsuch voted to uphold religious liberty in both cases and those decisions were affirmed by the Supreme Court. Both cases involved battles over the Affordable Care Act and the Obamacare mandate that employee insurance coverage provide all approved contraceptives.
In Gorsuch’s words, 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.”
Gorsuch is also attentive to separation-of-powers concerns that modern administrative law presents. In Gutierrez-Brizuela v. Lynch, Gorsuch wrote against the Supreme Court’s Chevron precedent from the 80s, which required judges to defer to federal agency interpretive determinations of Federal law.
His concurring opinion begins: “There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”
A random sampling of some of his inciteful quotes include:
“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 on everything from gay marriage to assisted suicide to the use of vouchers for private-school education,” he wrote. “This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”
“Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise?” Judge Gorsuch wrote. “The answer is no. While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true. And that is enough to call an end to this litigation as a matter of law.”
With respect to Freedom of the Press, he appears consistently protective. Although not written by Gorsuch, he joined in the opinion in Alvarado v. KOB-TV LLC where the court affirmed dismissal of invasion-of-privacy and intentional-infliction-of-emotional-distress claims brought by undercover police officers who were initially suspected of being involved in an alleged sexual assault, but later cleared. The court held that news reports on such topics were matters of public interest and as such did not involve “private facts,” and that “accurate news reporting — even when it is likely to have an adverse impact on the subjects of the report — usually does not give rise to an action for intentional infliction of emotional distress.” Similarly, and again while not written by Gorsuch, he joined in the opinion in Anderson v. Suiters where the court rejected various claims against a TV news reporter and her employer for airing excerpts of a video that the plaintiff had provided to the police as proof that she had been the victim of sexual assault by her husband, concluding that that the publication was “substantially relevant to the alleged criminal activities of [plaintiff]’s husband, a matter of legitimate public concern.”
However, Judge Gorsuch’s concurring opinion in Mink v. Knox departs from that course. There, while concurring in the majority’s First Amendment protective decision of a student’s journalist parody of a professor, Judge Gorsuch brought into question “the soundness of a rule that precludes private persons from recovering for reputational or emotional damage caused by parody about issues of private concern.”
Gorsuch appears to be a solid conservative, eloquent and thoughtful. If approved, he will preside over decisions which will shape our future, including cases involving intellectual property rights, civil rights, and environmental issues. Notably:
Patent trolls. A patent decision to watch for is TC Heartland LLC v. Kraft Foods Group Brands LLC. The case will hopefully answer whether patent “trolls” (companies that buy patents before they expire and then use them in bad faith in litigation) can bring lawsuits in any court district or if they must bring them where the defendants are doing business. The other case, Impression Products v. Lexmark International, will address how much patent control a company can maintain over their products after being sold.
Gorsuch has not decided any previous patent cases; however, in Meshwerks v. Toyota Motor Sales, a case involving copyright protection for digital models of cars and trucks, he spoke about the difficulties of distinguishing independent creation “in an age of virtual words and digital media” and ended with the conclusion that despite the creative labor and skill invested by Meshwerks in their modeling, the product wasn’t original enough. He wrote:
“Digital modeling can be, surely is being, and no doubt increasingly will be used to create copyrightable expressions,” he wrote. “Yet, just as photographs can be, but are not per se, copyrightable, the same holds true for digital models. There’s little question that digital models can be devised of Toyota cars with copyrightable features, whether by virtue of unique shading, lighting, angle, background scene, or other choices. The problem for Meshwerks in this particular case is simply that the uncontested facts reveal that it wasn’t involved in any such process, and indeed contracted to provide completely unadorned digital replicas of Toyota vehicles in a two-dimensional space. For this reason, we do not envision any ‘chilling effect’ on creative expression based on our holding today…”
Bathroom bills. Another important case that is being closely watched involves “bathroom bills” which require public schools to allow transgender students the use of specific bathroom facilities.
The case Gloucester County School Board v. G.G. focuses on a Virginia school board that adopted what opponents say is a discriminatory bathroom policy toward transgender students. A Supreme Court decision will likely provide guidance on other challenges to the so-called bathroom bills, which have prompted business boycotts in states such as North Carolina.
We have less guidance on these topics. However, in Druley v. Patton, Gorsuch joined an unpublished opinion ruling against a transgender inmate’s constitutional claims seeking hormone treatment and re-assignment from an all-male facility. Similarly, in Kastl v. Maricopa County Community College District, Gorsuch joined an unpublished opinion that, while recognizing that a transgender person can state a claim for sex discrimination under Title VII based on a theory of gender stereotyping, it ultimately ruled against the plaintiff. The employer had barred the plaintiff from using the female restroom until completing gender-confirmation surgery. The court held that ‘restroom safety’ was a non-discriminatory reason for the employer’s decision.
Everyone is tuned in to see how the Democrats in the Senate will act during the confirmation process. It may be that Judge Gorsuch’s confirmation process takes such a long time that he doesn’t get the opportunity to hear any of this Term’s cases.