People For the American Way

The Dissents of Judge Neil Gorsuch: Far to the Right and Out of the Mainstream

The Dissents of Judge Neil Gorsuch: Far to the Right and Out of the Mainstream
WASHINGTON, DC - JANUARY 31: Protesters take to the steps of the Supreme Court of the United States on January 31, 2017 in Washington, DC. (Photo by Tasos Katopodis/Getty Images for People For The American Way)

Many, if not most, decisions by the Supreme Court and the courts of appeals are unanimous. Reviewing the cases where an appellate judge has chosen to disagree with and dissent from his or her colleagues, therefore, can be particularly revealing. And that is precisely the case with Judge Neil Gorsuch. Judge Gorsuch’s dissents from his colleagues on the Tenth Circuit Court of Appeals 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. And this is on a court which, until recently, consisted primarily of Republican appointees like Gorsuch.  For example:

  • In Compass Environmental, Inc. v. Occupational Safety & Health Review Commission, Gorsuch dissented from a decision to affirm a Department of Labor fine against a company that failed to properly train a worker, resulting in his death by electrocution. Gorsuch claimed that there was no evidence to show that industry standards would have required more training. But as the court majority and the agency found, there was “clear evidence” to support the ruling. In particular, the company’s own job hazard analysis found “fatal danger” from the high-voltage power lines involved, and recommended training for employees. That training was given to some employees, but the employee who was killed did not get it because he started working after the training had occurred. As a result of that negligence, the danger truly did become fatal, and the fine against the company was clearly justified. But Gorsuch disagreed with his own colleagues — including one who, like Gorsuch, was appointed by President Bush — and argued that the corporation should pay nothing.
  • In TransAm Trucking, Inc. v. Administrative Rev. Bd., Gorsuch dissented from a decision to approve a Labor Department determination that a large trucking company had wrongfully fired a truck driver who had refused to drive under hazardous conditions. The trailer’s brakes had frozen in subzero temperatures, and the driver waited over two hours for repair help. He reported that he was “having trouble breathing because of the cold” and he “couldn’t feel his feet.” When help still did not arrive, he unhitched the large trailer because of concerns about driving the entire load under those conditions and began to drive away in the cab. The company insisted by radio that he keep waiting in the frigid conditions or drive with the full load, even though the trailer’s brakes had frozen. Although he returned when help arrived in around fifteen minutes, he was fired; the company claimed that the firing was proper because instead of remaining in the freezing conditions and not driving (which was his right), he drove off without the trailer instead of the dangerous way the company demanded. Gorsuch agreed with the company, claiming that finding for the driver was improperly using the law “as a sort of springboard to combat all perceived evils in the neighborhood” and that the objective to promote health and safety was just “ephemeral and generic.”  The court majority agreed with the agency, calling Gorsuch’s reasoning “curious.”
  • In Planned Parenthood Ass’n. of Utah v. Herbert, a three-judge panel had issued a preliminary injunction against Utah’s governor for unilaterally cutting off Planned Parenthood (PP) funding. A majority of the full 10th Circuit (including several Republican appointees) declined to rehear the case. Gorsuch, however, wrote a dissent for himself and several others, and argued for deferring to the governor. An important issue in the case was the governor’s intent in cutting off funding, which the panel found was retaliation for promoting access to abortion. On that issue in particular, Gorsuch argued for deference to the governor in the name of “comity.” But one of the majority judges explained that Gorsuch’s dissent “mischaracterizes” the record, and that there was clear support for the panel’s decision based on its legal analysis and public statements and admissions by the governor himself. In fact, even the judge who dissented from the panel decision in the case opposed a rehearing. In addition, another judge in the majority pointed out that none of the parties asked for rehearing within the time permitted, and there was “no justification” for polling the court on that question at all (apparently an unidentified judge, quite possibly Gorsuch or another judge who joined his dissent, had requested the judges be polled.) This dissent not only shows Gorsuch’s lack of regard for reproductive rights, but also his tendency to defer to executive authority when individual rights are concerned, a dangerous tendency under President Trump.

These are just a few of the dissents written by Gorsuch where his disagreements with his own colleagues, including other Republican appointees, show that he is far to the right and out of the mainstream. Altogether, Judge Gorsuch has written 35 dissents, which are in the following areas: workers’ rights, abuse of government official authority, corporations and consumers, criminal law, and other constitutional issues. Each is discussed below.

Workers’ Rights

Judge Gorsuch has written five dissents in cases concerning workers’ rights. In all but one, the majority found in favor of the worker, but Gorsuch argued for a result that would have hurt the worker and helped a corporation or other employer. These include the Compass Environmental and TransAm Trucking cases discussed above. The two others are similarly troubling.1

In Strickland v. United Parcel Service, Inc., the court majority ruled that a lower court had improperly dismissed a complaint that UPS had committed sex discrimination against a fired female employee and had also violated the Family and Medical Leave Act (FMLA), and sent the case to the district court so that the plaintiff could try to prove her claims at trial. Although Gorsuch agreed with the FMLA ruling, he dissented on the discrimination claim and argued that the dismissal of that claim should be affirmed. The majority was critical of Gorsuch’s argument, noting that he “fail[ed] to acknowledge” substantial evidence that the worker was treated differently because of her gender. That evidence, the majority explained, included testimony from “multiple co-workers” that she was treated differently than male employees, including being required to meet 100 percent of sales goals and being subjected to “increased oversight” such as frequent and “negative” meetings that “interfered with her ability to do her job.”

Finally, in NLRB v. Community Health Services, Inc., Judge Gorsuch dissented from a ruling last year that upheld a National Labor Relations Board (NLRB) decision that granted over $100,000 in back pay to hospital workers whose hours were illegally reduced, without deducting amounts that some earned elsewhere during the period that the employees’ hours were improperly reduced. The Board concluded that such deductions were improper because the outside employment was important to help address the additional hardship, encourage production and employment, and prevent dilatory conduct by employers in accord with the law. But Gorsuch did more than dissent. He excoriated the NLRB, a favorite target of many right-wing Republicans, suggesting that the NLRB’s decision could have stemmed from its alleged “frustration that it cannot pursue more tantalizing goals like punishing employers for unlawful actions.” Interestingly, one of the judges in the majority from which Gorsuch dissented was Chief Judge Tim Tymkovich, also a Bush appointee who was on Trump’s list of 21 possible Supreme Court nominees, but who obviously was not selected.

Abuse of Government Official Authority

Judge Gorsuch has written four dissents in civil cases concerning claims of abuse of government official authority-–three involving law enforcement officials and one involving a state’s governor. In three out of four, his judicial colleagues found that such abuse had occurred or at least that plaintiffs should have a chance to prove it. In all three of those cases, Gorsuch dissented and would have deferred to the government official.

The most important of Gorsuch’s dissents was in Planned Parenthood v. Utah, discussed above. The others concerned whether to give qualified immunity to law enforcement officers and others charged with abuse, which would mean that victims would not have a chance to take their claims to a jury because the law had not been clearly established that such conduct was improper. In two cases involving police abuse of authority, the majority decided that under the facts and the law, the victims should at least have a chance to prove their claims. In both, Gorsuch disagreed.

In Cortez v. McCauley, the full 10th Circuit considered whether a couple whose home was unexpectedly invaded by police after midnight could bring claims of abuse to a jury. In the case, a two-year-old girl for whom plaintiff Tina Cortez had babysat said that Tina’s partner had molested her (which other later investigation found to be untrue). Based on that report alone and with no warrant, four police officers burst into the Cortez’s home after midnight.2 Among their other actions, the police woke up the couple, shone a flashlight into Ms. Cortez’ face, grabbed her by the arm, put her in the backseat of a locked police car, interrogated her, left her there for about an hour, and searched the home without a warrant, even though the 2-year-old had not accused her of any misconduct. The couple was released and allowed back into their house after 2 a.m., after it became clear from investigation elsewhere that the claims against Mr. Cortez were false and there was no basis to proceed any further.

The majority and Judge Gorsuch were in substantial agreement on Mr. Cortez’s claims of improper police conduct, but Judge Gorsuch wrote a dissent for himself and several other judges from the decision of the majority, written by another Republican appointee and joined by several others, that Ms. Cortez should be able to present her claim to a jury and that qualified immunity should not apply. The majority criticized Judge Gorsuch because his dissent “comes very close to saying” that the police conduct was justified simply because the 2-year-old’s claim was repeated by a nurse and her mother, and was then “acted upon by police officers,” reflecting an extraordinary and improper degree of deference to police officials. Gorsuch also attempted to minimize the harm to Ms. Cortez, describing it as simply a “transient feeling” of intimidation. But as the majority explained, Gorsuch “disregard[ed] the emotional or psychological injury” that a jury could well find “resulting from intimidation, fear for personal safety,” and “loss of liberty and privacy,” as a result of being “removed from the residence in the middle of the night” and being “locked” in a police car and interrogated “for over an hour.”

Judge Gorsuch also dissented in Webb v. Thompson, where the majority affirmed a lower court decision saying that county police officials were not entitled to qualified immunity from a complaint by a man arrested at a simple traffic stop and treated improperly by county police. This included being held in jail for five days when, according to county policy, he should have been released in no more than 48 hours. The lower court had found that there was a disputed issue of fact as to whether three officers had helped cause the delay, which all agreed was improper, and therefore ruled that the victim was entitled to present his case to a jury. But Judge Gorsuch dissented from the majority’s decision to uphold that ruling, claiming that the officers did not have a personal legal duty to ensure a prompt hearing. The majority easily explained the flaw in Gorsuch’s argument. Whether or not they had an affirmative duty to act, the majority explained, the officers were clearly liable if they in fact “caused the delay.”

In one case, A.M. v. Holmes, Gorsuch dissented in favor of an individual. The primary claim in that case was against two middle school officials who had asked an Albuquerque police officer to remove a 13-year-old boy who had disrupted a physical education class and rendered a teacher “unable to continue to teach the class.” The student was suspended and also arrested under a state law prohibiting interference with the educational process. When the mother sued, the lower court granted qualified immunity, a 10th Circuit panel majority affirmed, but Gorsuch dissented, suggesting that the severity of the officials’ reaction was not justified. The majority also was troubled by the circumstances, but explained that it is “not our place to question or undermine” the state’s decision to “criminalize interference with the educational process.”

Corporations and Consumers

Eight of Judge Gorsuch’s dissents involved corporations, consumers, or both, including one environmental case. One dissent involved a case of two corporations pitted against each other.3 In all but one of the seven others, Gorsuch disagreed with his colleagues and wrote a dissent that favored corporations, harmed consumers or other citizens, or both. In the seventh, the corporation Gorsuch ruled against was an adult bookstore.4 Specifically:

Ragab v. Howard concerned the increasingly important issue of forcing individuals to go to arbitration, rather than the courts, to resolve disputes with corporations. In this case, an investment banking firm and a capital financing company tried to compel arbitration of Sami Ragab’s lawsuit for misrepresentation and violation of consumer credit repair laws in connection with agreements to help him obtain financing for a new business. Both the district court and the court of appeals majority, including a Republican appointee, ruled against the corporations. Judge Gorsuch dissented, however, arguing that even though the six different agreements among the parties contained conflicting language concerning the specifics of handling arbitration, the fact that all six called for arbitration of some sort was enough, and that the court should do a “workaround” so that arbitration would take place. The majority strongly disagreed. The different provisions, the majority explained, created such “irreconcilable” conflicts that it was clear that there was no “meeting of the minds,” a basic principle of contract law. The majority pointedly noted that it would be improper for “courts” to effectively write in an arbitration requirement when the agreements did not “demonstrate the parties’ intent.”

In Gorsuch’s sole dissent on environmental issues, New Mexico Off-Highway Vehicle Alliance v. US Forest Service,  he dissented from a ruling by two other Republican appointees and argued that the Sierra Club and other environmental groups should not be allowed to intervene in a lawsuit contesting Forest Service rules that expanded the number of trails and roads that were only for hikers and bikers. The Alliance, a nonprofit supported by Kawasaki and other motorized vehicle companies, wanted to return to old rules allowing motorized vehicles on more trails. Even though neither the Forest Service nor the Alliance objected, the district court ruled against the environmentalists’ participation in the case, and Gorsuch agreed in dissent. As the majority explained, however, other 10th Circuit decisions made clear that the environmentalists had strong reasons to be involved in the case and “should not have to rely” on the government to protect their interests, particularly since the government did not object to the proposed intervention. The majority specifically criticized Gorsuch for appearing to rely on an opinion of just three judges in a previous case involving all 13 10th Circuit judges to try to reach a narrow and unfavorable result in the case.

In WWC Holding Co. v. Sopkin, Gorsuch argued that a wireless service carrier should be able to avoid the Colorado Public Utilities Commission’s efforts to enact state-specific consumer protection standards for wireless phone service because the company was complying with relevant federal rules. The majority in the case, including another Republican appointee, disagreed and ruled that Colorado had the authority to enact and enforce such state-specific rules, including requiring free calls at libraries, in school districts, and in other community gathering places, under the “express statutory authority” of federal as well as state law.

Judge Gorsuch dissented in three other cases in which the majority had found in favor of individual consumers:

  • Pace v. Swerdlow, where the majority reversed the dismissal of a negligence case against an expert witness and ruled that parents should have the opportunity to prove that the expert’s actions prevented them from receiving compensation relating to their daughters’ death.
  • Salmon v. Astrue, where the majority ruled that a hearing examiner had improperly disregarded evidence supporting a claim for physical and mental disability benefits from the Social Security Administration, but Gorsuch argued that the examiner’s denial met the legal test of being supported by “substantial evidence,” which he equated with simply being within the “bounds of reason.”
  • Blausey v. US Trustee, where the majority allowed a bankrupt couple to appeal an unfavorable bankruptcy court decision rejecting a petition, although it ultimately decided against the couple, but Gorsuch would not have accepted the appeal in the first place.5

Criminal Law

Most of Judge Gorsuch’s dissents have been in criminal cases, often raising constitutional issues concerning whether people have been deprived of effective assistance of counsel under the Sixth Amendment or of rights against unreasonable search and seizure under the Fourth Amendment. A number of these were habeas corpus cases, in which the federal courts undertake limited but important review concerning criminal cases tried in state courts.  Gorsuch has dissented in favor of criminal defendants on five occasions. But in almost twice as many, nine, he has dissented against rulings by colleagues, many of them Republican, that vindicated important constitutional rights.6

Sixth Amendment cases

Most troubling have been Gorsuch’s four dissents in cases where his colleagues found that Sixth Amendment rights were violated because individuals, usually low-income people, did not receive effective assistance of counsel. Perhaps the clearest example is provided by his two dissents in Williams v. Jones.

In the three-judge panel decision in Williams, two of Gorsuch’s Republican colleagues, including the very conservative Michael McConnell, ruled that more effective relief was required for an individual who, both the majority and an Oklahoma state appellate court agreed, was deprived of effective assistance of counsel. In this case, the state had offered Williams a plea agreement under which he would serve 10 years in jail, which Williams wanted to accept but was stopped by his counsel. The lawyer claimed that Williams would be committing perjury if he accepted the agreement and said that he would withdraw from representing Williams unless the case went to trial; short of money, Williams agreed. The trial resulted in a guilty verdict and a sentence of life without the possibility of parole. The Oklahoma court of appeals agreed that the lawyer’s conduct was improper and had harmed his client, but the only relief they granted was to reduce the sentence to life with the possibility of parole. The 10th Circuit accepted a habeas petition limited to the question of the adequacy of the relief provided by the Oklahoma court.

The panel majority explained that in light of the egregious conduct by counsel and the obvious consequences, the case should be sent back to the state court to provide a remedy “tailored to the injury” i.e. the loss of a ten year sentence as opposed to a life sentence. Gorsuch not only disagreed, but would also have gone even further. He claimed that there was no Sixth Amendment violation at all, because Williams received a fair trial in which his lawyer represented him well after the plea agreement failed. The majority was extremely critical of Gorsuch’s claim. “No federal circuit court,” they explained, had accepted Gorsuch’s view that any pre-trial Sixth Amendment violation is somehow cured if the later trial is fair. Gorsuch’s claim that the Sixth Amendment is essentially limited to what happens at trial, the majority stated, has been “rejected by the Supreme Court” and is “incompatible with a right to effective assistance of counsel in connection with the entire plea process.”

But Gorsuch did not stop there. He dissented from a decision by the entire 10th Circuit not to rehear the case, which included several additional Republican-appointed judges, this time also claiming that the effect of the court’s ruling was to overturn the later jury verdict that had found Williams guilty. One of the Republican-appointed judges on the original panel made short shrift of Gorsuch’s arguments in a concurring opinion. It was not a federal court that had originally pointed out the Sixth Amendment violation requiring relief; it was the Oklahoma appellate court that found Williams’ lawyer’s  conduct “highly improper” and “deficient,” and that Williams had “indeed suffered prejudice by his trial counsel’s action.” Gorsuch’s view, the concurrence explained, was “impossible to square” with Supreme Court and court of appeals’ rulings on effective assistance of counsel. The Supreme Court denied review of the case.

Other dissents by Gorsuch on findings of Sixth Amendment violations include:

  • Wilson v. Workman, in which the majority of the full Tenth Circuit agreed, in a decision by Judge McConnell and joined by other Republican appointees, that a death row prisoner suffered a Sixth Amendment violation because his lawyer failed to present important evidence of Wilson’s poor mental health and other problems that could have mitigated against the death penalty. Gorsuch dissented and claimed that the court should defer to the state appellate court that had rejected the claims. But as the majority pointedly explained, deference was inappropriate because the state court had not considered available “material, non-record evidence” and thus had not truly “adjudicated that claim on the merits.”
  • Hooks v. Workman, in which another Republican-appointed judge wrote a panel opinion finding that a death row prisoner’s lawyer had failed to present important mitigation evidence, including concerning Hooks’ brain damage, mental retardation, and a history of abuse against him. Gorsuch argued this time that even if that evidence had been presented, the jury would have sentenced Hooks to death. As the majority explained, however, the lawyer’s work was demonstrably “deficient” and “prejudicial,” and there was clearly a “reasonable probability” that at least one juror would have refused to impose the death penalty if the Sixth Amendment violation had not occurred.

Motions to Suppress

Judge Gorsuch’s record is mixed concerning dissents relating to motions to suppress evidence because of alleged constitutional violations by police. In US v. Carloss, Gorsuch argued in dissent that it was improper for police officers to knock on a homeowner’s door as part of an investigation into illegal possession of a machine gun, without a warrant or exigent circumstances, when the homeowner had conspicuously posted “No Trespassing” signs on his door and around the property. Gorsuch listed this opinion as one of his ten most significant opinions in his response to the Senate Judiciary Committee questionnaire.

In three other cases not involving trespassing at a home, however, Gorsuch dissented from decisions that suppressed evidence because of improper conduct by law enforcement. In US v. Benard, he dissented from a decision to suppress statements made by Benard after he had been arrested without receiving Miranda warnings; Gorsuch argued that the error was harmless, but the majority explained that they “cannot conclude” that was correct “beyond a reasonable doubt,” as the law requires.  In US v. Nicholson, Gorsuch dissented from a ruling that police officers had improperly stopped and then searched a car for an alleged traffic violation, when there was no violation at all because the driver’s left turn was not illegal; Gorsuch claimed it was a reasonable mistake, but the majority explained that according to existing Circuit precedent, “failure to understand the law by the very person charged with enforcing it is not objectively reasonable.”7 And in US v. Dutton, Gorsuch dissented from a decision by two other Republican appointees that a search warrant for a storage unit contained a “fatal flaw” because the application lacked “any evidence” that the unit belonged to Dutton; Gorsuch called it a good faith error, but the majority clearly disagreed.

Other criminal issues

In addition to Carloss, two of Gorsuch’s other dissents favorable to criminal defendants concerned prosecutions for federal firearms violations. In US v. Ford, he argued in dissent that prosecutors should have disclosed evidence suggesting that the defendant was entrapped into purchasing a machine gun, although the majority considered that evidence not material to the defense. In US v. Games-Perez, Gorsuch dissented from a decision not to rehear a case concerning a federal law prohibiting possession of a gun by a felon.

Two other Gorsuch criminal law dissents that favored defendants concerned unique issues. In US v. Nichols, he argued in dissent that the full 10th Circuit should rehear a case in which a sex offender was convicted of violating requirements of the Sex Offender Registration and Notification Act that he notify authorities when he travels to another area; Nichols had been convicted prior to the date of the Act, and Gorsuch argued that Congress had improperly delegated to the attorney general wide authority to determine to what extent the law applied to such offenders.8 Gorsuch also dissented in US v. Spaulding and disagreed with a majority ruling that a lower court did not have jurisdiction to set aside a criminal judgment that contains a term of imprisonment.

In several other cases, however, Gorsuch dissented on the merits from decisions by his colleagues that disfavored prosecutors. In US v. Rosales-Garcia, he dissented from a ruling that the trial court judge had improperly enhanced the sentence of an individual convicted of re-entering the country illegally because of a prior conviction that resulted in a severe sentence. The majority stated that “we cannot agree” with Gorsuch’s claim that the US Sentencing Guidelines could be equally plausibly read to support the government’s position. As the majority explained, the sentence on the prior conviction had been later enhanced because of the individual’s re-entry, not because of the original misconduct, and thus should not qualify under the guidelines as a reason to further increase the sentence imposed. Gorsuch also dissented in US v. Raymond, in which one of his Republican colleagues wrote an opinion affirming a lower court decision to dismiss an indictment that violated a previous plea agreement that prosecutors not bring additional charges against Raymond arising out of conduct known to the US Attorney before a specified date. Gorsuch argued that the district judge had committed an error, but the majority explained that “we cannot disturb the district court’s factual finding” that the US Attorney did have such knowledge, based on specific testimony.

Other Constitutional Issues

In addition to the criminal law and other cases discussed above, Judge Gorsuch has written dissents from his colleagues’ opinions in three other cases relating to constitutional law issues: two relating to the Establishment Clause and one relating to the Constitution’s Guarantee Clause. In all three, Gorsuch’s dissent was significantly to the right of even other Republican judges on the court or raised other troubling concerns.

In Green v. Haskell County Board of Comm., a three-judge panel of all Republican appointees had concluded that an Oklahoma county’s decision to approve the construction of and maintain a Ten Commandments monument on its courthouse lawn violated the Establishment Clause. Judge Gorsuch wrote an opinion for himself and several other judges that dissented from a decision by the full court of appeals, including several other Republican appointees, not to rehear the case. He argued that the panel’s decision was inconsistent with the Supreme Court’s ruling in Van Orden v. Perry  that upheld a Ten Commandments monument in Texas, and suggested that the court should not even use the established “endorsement” test to decide the case. As the panel decision explained, however, the endorsement test remained the law in the Tenth Circuit (and elsewhere), the monument clearly had the “primary effect of endorsing religion,” and the Van Orden decision did not apply because that case involved a monument that had stood on public property for 40 years without challenge, while the monument in Green was recently erected and challenged. The Supreme Court denied review of the case.

Another panel of three Republican-appointed judges similarly ruled against the Utah Highway Patrol Association’s construction and maintenance of a series of 12-foot crosses on public land near roads to memorialize deceased officers, explaining that the crosses had the “impermissible effect” of appearing to endorse the Christian religion. Judge Gorsuch again wrote an opinion for himself and several other judges that dissented from the decision of the full court of appeals, including Republican appointed judges, not to rehear the case. Gorsuch again asserted that the “endorsement” test should not be applied, and this time relied on a three-judge plurality in another Supreme Court case, Salazar v. Buono, that allowed a cross to remain on public property. As the panel had explained, however, the endorsement test clearly remained the law of the Circuit, and the Buono case did not apply because it concerned a cross that had been on government property since the 1930s. The Supreme Court again denied review of the case; Justice Thomas alone wrote a vigorous dissent, making some of the same arguments as did Judge Gorsuch.

Finally, Judge Gorsuch and several others dissented from the decision of the full 10th Circuit not to rehear a panel decision in Kerr v. Hickenlooper. The panel had upheld a district court decision to allow a claim by a number of state legislators and others that the Colorado taxpayer bill of rights, under which all tax increases must be approved in advance by voters before legislative action, violated the Constitution’s Guarantee Clause. Under that clause, all states are guaranteed a republican form of government where a state legislature presumably makes such decisions. The panel did not reach the merits of the claim, but agreed that there was standing to go forward and the case should not be dismissed as raising only a “political question.”

Gorsuch argued that the issue was an unreviewable political question because there were no “judicially manageable standards” to decide it. The panel disagreed, pointing out that no such standards existed in advance of the Supreme Court’s decisions on the Second Amendment. In addition, Gorsuch ignored the fact, as one scholar has pointed out, that the Supreme Court itself has ruled on the merits of Guarantee Clause claims as recently as 1992. Even more importantly, Gorsuch’s dissent suggested a particularly troubling view on the subject of possible constitutional challenges to partisan redistricting.

In particular, in trying to support the argument in his dissent, Gorsuch asserted that the Supreme Court had “put to bed” in Vieth v. Jubilerer the question of whether partisan gerrymandering could be challenged constitutionally because of the lack of manageable standards of review. As the Campaign Legal Center has pointed out, however, that statement is flatly wrong. Although some justices argued that the issue cannot be reviewed, in his controlling opinion in Vieth, Justice Kennedy recognized the corrosive effects of partisan redistricting, and held the door open for appropriate and judicially manageable standards in the future. In fact, a recent decision from Wisconsin that articulated such standards in striking down partisan gerrymandering could well be reviewed soon by the Supreme Court. Gorsuch’s suggestion that he already agrees with the justices in Vieth who claimed that the issue should not be reviewed at all is extremely disturbing.9

Conclusion

This review of Judge Gorsuch’s dissents yields very troubling conclusions. Consistently, he has argued in favor of corporations and government authority and against workers, consumers, environmentalists, and poor people, even when a majority of his colleagues, including other Republican appointees, disagree. In those rare instances when he does not so argue, he has frequently sided with gun and property owners. His views are clearly to the right of the Supreme Court majority — even when Justice Scalia was on the Court — on issues like the Sixth Amendment, partisan gerrymandering, the non-delegation doctrine, and the Establishment Clause. Measured against his own colleagues on the Tenth Circuit, including Republican appointees, he is far to the right and out of the mainstream, and should not be elevated to the Supreme Court.

Endnotes

  1. Gorsuch’s dissent in the fifth case, Flitton v. Primary Residential Mortgage, Inc., was mixed. The case concerned attorneys’ fees under Title VII and is primarily procedural. Among other things, the majority of the panel ruled in that case that a district court properly concluded that it did not have jurisdiction to award attorneys’ fees relating to a successful appeal of a previous ruling because the plaintiff did not first seek those fees in the court of appeals itself, as a prior 10th Circuit decision required. Gorsuch dissented from that part of the ruling, although he obviously did not decide whether the fees should actually be granted. The majority pointed out, moreover, that accepting Gorsuch’s view could be detrimental because it would “effectively strip this Court of its discretion to award appeal-related fees in all Title VII cases.”
  2. Because the disagreement between the majority and Gorsuch’s dissent concerned what happened to Tina Cortez, those facts are described in more detail.
  3. In that case, US ex rel. Belt Con Construction Inc. v. Metric Construction Co., the majority ruled in favor of a subcontractor in a dispute over a federal construction project, while Gorsuch’s dissent argued that the general contractor should prevail.
  4. The one exception was Abilene Retail #30 Inc. v. Board of Commissioners, where a panel opinion had ruled against a county ordinance zoning out an adult bookstore and Gorsuch dissented from a decision by the full 10th Circuit not to rehear the case.
  5. Both Salmon and Blausey were Ninth Circuit decisions in which Gorsuch was sitting on the panels by designation.
  6. One other Gorsuch criminal dissent favored neither the defendant nor the prosecution. In US v. Cos, the majority upheld a lower court decision suppressing evidence seized in violation of the Fourth Amendment. Gorsuch dissented not on the merits, but argued that the government’s appeal of the lower court decision should be dismissed because it had filed it too late.
  7. In a later 2014 decision, the Supreme Court ruled that an officer’s reasonable mistake of law could qualify as a reasonable mistake.
  8. Although Gorsuch’s dissent is sympathetic on the facts of this case, his views on limiting the ability of Congress to delegate authority to agencies under the discredited non-delegation doctrine are to the right of Justice Scalia. As Scalia explained in one case, the Court has “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.”
  9. The Kerr case itself was later dismissed by the panel because of a subsequent Supreme Court decision indicating that individual legislators did not have standing to pursue the claim.