Gorsuch, Part 6: The Now-Justice Like the Then-Judge

We've seen how Neil Gorsuch's record as an appeals court judge was ultra-conservative. Reviewing those cases where he stuck his neck out to disagree publicly with his colleagues by writing a dissenting opinion--presumably because he felt strongly that his colleagues were wrong on an important issue--reveals a clear ideological pattern. (See Part 4 and Part 5.)

In civil cases, he repeatedly sided against the worker and for the employer; sided against consumer protection; sided against Planned Parenthood; sided against the separation of church and state. In criminal cases, he argued that correction and police officers should be immune from liability despite majority findings that the vindicated suspects' constitutional rights had been violated; and he argued that convictions should be upheld despite findings that the defendants' lawyers were ineffective, or that Miranda rights were violated, or that the incriminating evidence was unconstitutionally obtained.

Perhaps most notable (and in my view most worrisome), is that even when Gorsuch sided with the defendant, he set forth the very narrow, literalist view of the 4th Amendment that it does not prohibit unreasonable searches or seizures. Rather, it only prohibits unreasonable searches and seizures if they involve one of the few particular items mentioned in that amendment--i.e., "persons, houses, papers, and effects." But nothing else. This is a view, by the way, based on long-overruled decisions of the Supreme Court from an earlier era. This also just happens to be the same narrow, literalist view of search and seizure protections taken by Gorsuch's hero, the late Justice Antonin Scalia, to whose vacancy he was appointed. And it is the view condemned in recent years by, among others, conservative Justice Samuel Alito, whose separate concurring opinion in U.S. v. Jones, 565 US 400 [2012] exposed the dangers of that view which was embraced in Scalia's opinion in that case.

Sooooooo, has Gorsuch's record on the federal appeals court been reflected in his record to date at the Supreme Court? He has been a justice for only a short time. Confirmed by the Senate in April, he has only participated in those cases which the Court considered as it was wrapping up its term. And yet....

Let's take a look.

Death Penalty
McGehee v. Hutchinson: In Gorsuch's first public vote, he sided with execution. He broke the Court's 4-4 tie to allow Arkansas to proceed with several executions that the state wanted to complete before its supply of lethal drugs expired. Each of the death inmates had already been imprisoned for 10 years; a few for more than 20. Each of them had legal claims challenging their convictions or sentences or even insisting on innocence. State and federal courts at various stages of the litigations had found some merit in their claims. But the Supreme Court declined to review the claims and, with Gorsuch's vote making a bare majority, approved the executions.

Campaign Finance
Republican Party of Louisiana v. FEC: The Supreme Court majority summarily affirmed--in a four word entry--the decision of the court below to uphold a particular provision of the federal campaign finance law (the Bipartisan Campaign Finance Reform Act of 2002, aka “McCain-Feingold”). The provision in question prohibits the use of unregulated contributions made to political parties for federal election activities. Gorsuch, together with Justice Thomas, noted his disagreement with the majority's disposition of the case and would have proceeded with the full review process.

Indigent Criminal Defense
McWilliams v. Dunn: The Alabama courts had denied the death penalty defendant the assistance of a mental health expert. By a typical 5-4 ideological split, with Justice Kennedy casting his vote with the liberals, the Court held that indigent defendants who have raised serious mental health issues do have such a right, and it sent the case back to the lower courts to apply the law correctly. Gorsuch joined Justice Alito's dissenting opinion, taking the position that the decision of the state courts should have been affirmed, because the Supreme Court had not previously "clearly establish[ed] that a defendant is entitled to an expert."

Employee Grievance
Perry v. Merit Systems Protection Board: A 7-2 majority of the Court ruled that an employee could seek judicial review of his "mixed" grievance (i.e., discrimination underlying a civil service grievance) in federal district court; significantly, such a court is not required to defer to an administrative ruling which, in this case, was adverse to the employee. Gorsuch dissented. In an opinion joined by Thomas, Gorsuch argued that an employee seeking judicial review of an adverse administrative ruling on his civil service grievance can do so only in the Federal Circuit Court. And, again here's the significance: that court must affirm the employee-adverse administrative ruling unless it is utterly irrational.

Trump's Travel Ban
Trump v. Int'l Refugee Asst Project: The Court unanimously agreed to review the constitutionality of President Trump's executive order that suspended the entry of certain foreign nationals into the United States. At the same time, by a  6-3 majority, the Court mostly upheld the orders of the courts below that had temporarily barred enforcement of the executive order. The Court did, however, partially reverse the courts by allowing the executive order to be enforced "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States." Gorsuch joined Thomas's dissenting opinion, arguing that the executive order should be allowed to be enforced in its entirety--i.e., including its enforcement against those with "a close familial relationship" with an American--because the "Government’s interest in preserving national security" outweighed the resulting hardships to affected individuals.

Church-State Separation
Trinity Lutheran Church v. Comer: By a 5-2-2 majority, the Court held that Missouri engaged in unconstitutional religious discrimination when it denied the church's request for funding for its playground--which funding was generally available to non-religious institutions. [Missouri is one of those state's with an strict (originally anti-Catholic immigrant) prohibition against aiding religious institutions.] Chief Justice Roberts' majority opinion, in a footnote, underscored that "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination." Gorsuch, joined by Thomas, wrote a separate concurring opinion disassociating himself from that limiting footnote. Anticipating other applications of law to religious institutions, he wrote that "general [constitutional] principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else." [Hmmm, such as laws requiring equal treatment of gays and lesbians and same-sex married couples, even in the face of religious objections? And see immediately below!]

Gay Rights
Pavan v. Smith: This case involved Arkansas's refusal to include the name of a biological mother's same-sex spouse as a parent on the child's birth certificate. By a 6-3 majority, the Court summarily granted review and reversed on the ground that, in accord with the Court's 2015 decision in Obergefell v. Hodges, same-sex married couples are equally entitled to “the constellation of benefits that the State has linked to marriage.” Gorsuch dissented. In his opinion joined by Thomas and Alito, Gorsuch insisted that "nothing in Obergefell indicates that a birth registration regime based on biology...offends the Constitution."

Gun Rights
Peruta v. California: The Court declined to review a decision of the 9th Circuit that “the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” The California law, which generally prohibits concealed guns in public places, was thus upheld. Gorsuch joined Thomas's dissent. The dissenters complained that the majority's decision not to take the case "reflects a distressing trend: the treatment of the Second Amendment as a disfavored right." They were also unequivocal about their position on the California law. As Thomas concluded for himself and Gorsuch: "the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right."

Well there it is. By his votes and separate opinions in these ideologically-laden cases, Neil Gorsuch has in short order left little doubt about his strong ideological leanings. And beyond ideology or political philosophy or jurisprudence, consider his partisan bent. How would a typical Republican politician vote on these issues? Not a judicially retrained judge or strict constructionist or believer in federalism (i.e., states' rights) or any other actual, coherent judicial or political philosophy. But a partisan Republican.

What's the common thread through his positions on issues as varied as gun rights and gay rights, Trump's travel ban and campaign finance, worker rights and rights of the accused? That's right, connect the dots. His record on the Supreme Court already screams "ultra-conservative partisan Republican."

Some--like the Federalist Society and the Heritage Foundation and other very conservative groups and individuals who recommended him to Trump--undoubtedly are pleased with Justice Gorsuch's record thus far. Others, more moderate or liberal, much less so. But whether pleased or not with Gorsuch's Supreme Court record to date, it is undeniably what it is: politically partisan, conservative Republican.

Gorsuch, Part 4: His (Backward and Extreme) Past IS Prologue

Then-Judge Gorsuch compiled a distinctive record on the federal appeals court.

Now-Justice Gorsuch has already begun to build another distinctive record at the Supreme Court.

They are very much the same.

Let's look at them both.

At his confirmation hearing, Democratic Senators harped on an opinion that then-Judge Gorsuch had written involving a fired truck driver. In his opinion, Gorsuch took the position that the company was within its rights to fire the trucker who had left his rig on the side of a highway--even though the trucker had done so in order to save his life, which was in danger, because he and his rig were stranded in a severe winter storm.

Whatever one might think about Gorsuch's opinion, it's actually worse, or better, depending on one's point of view. Gorsuch's opinion was a dissent. That is, his colleagues had sided with the trucker who, therefore, won the case and was vindicated. But Gorsuch apparently thought that his colleagues were so wrong, and that it was so important that the company be allowed to fire the trucker, that he authored a dissenting opinion to make public his disapproval of his colleagues' decision favoring the trucker.

At the confirmation hearing, Republican Senators, as well as Gorsuch himself, sought to downplay the Democrats' criticism. They insisted that this particular opinion did not really represent any overall bias against workers, or in favor of business, or reflect a callous indifference or ultra-conservative ideology.

Hmmmm.

The truth of the matter is this. Anyone willing to actually review Gorsuch's record as a federal appeals court judge, and willing to be honest about what that review revealed, would have to acknowledge that his trucker opinion was fairly typical--not an aberration--and that Gorsuch's record was ultra-conservative. Good or bad, that is what it was. Not moderate. Not balanced. Not neutral in any real sense of that term. But overwhelmingly, ideologically, one-sided.

Of course, that should be no surprise. That is exactly why the Federalist Society and the Heritage Foundation--too institutions that are unabashedly conservative [Again, good or bad.]--recommended Gorsuch to Trump. Nor should that be a surprise to anyone who cared to pay attention to what Gorsuch had previously said and written about the role of judges. And more to the point, about his view of judicial decision-making. In my own view, as I have written previously, it is "extreme and backward." [See Part 3; Part 2; Part 1.] 

Now that may sound good to some. That may indeed be what some believe to be appropriate for a judge. That is, a judge should strictly adhere to the past, strictly oppose judicial attempts to move the law forward, strictly insist on preserving those "traditional" values such as old school religion, free market capitalism, etc., etc.

But whether one believes that being "extreme and backward"--in that sense--is good or bad, preferable and appropriate in a judge or not, it cannot seriously be disputed that Gorsuch's record is just that. Sure, anything can be disputed, just as some of the Senators and commentators disputed any such characterization. And especially if one is entirely unfamiliar with Gorsuch's record, or if one is so ideologically motivated that Gorsuch's actual record is simply denied.

So let's take a look at Gorsuch's record. And since dissenting opinions, like Gorsuch's opinion in the trucker case, are so revealing about what the authoring judge thinks is important--i.e., important enough to disagree openly and take a stand against a majority of that judge's colleagues--let's focus on those.

We'll begin with employment law cases. They demonstrate that siding against workers, even in the most sympathetic cases, was the pattern--not the exception--for Gorsuch.

Worker/Employer
TransAm Trucking, Inc. v. Administrative Review Board: This is the fired trucker case. The majority of the appeals court held that the need to save his life necessarily justified the trucker's leaving his rig. Judge Gorsuch disagreed; in dissent he argued that the employment contract and the employer's rules did not permit the trucker to leave, regardless of the dire circumstances.

Compass Environmental, Inc. v. Occupational Safety and Health Review Com’n: The majority upheld OSHA's finding that the company committed a serious safety violation by failing to train its now-deceased employee on avoiding an electrocution hazard at work. Gorsuch dissented; he argued that the company only violated its own internal rules.

N.L.R.B. v. Community Health Services: The majority upheld the NLRB's award of backpay to workers where the employer had wrongfully reduced their working hours. Gorsuch dissented; he argued that the workers' backpay should be reduced if they had taken a "second or 'moonlighting' job" to make up for their reduced hours.

Strickland v. United Parcel Service, Inc.: The majority held that the evidence that the female worker was treated worse than her male co-workers entitled her to a jury trial on her sex discrimination claim. Gorsuch dissented on the ground that, in his view, the evidence showed that the employer harassed male workers too.

See a pattern emerging?
Let's continue with a few other civil cases.
(We'll look at criminal cases in the next post.)

Consumer Protection
Ragab v. Howard: The majority held that the plaintiff was entitled to sue the corporate defendants for violating consumer credit repair laws. Gorsuch dissented; he argued that, despite inconsistencies in the parties' several agreements, the "non-essential [procedural] terms" show that the plaintiff should be forced into arbitration.

Right to Choose
Planned Parenthood Association of Utah v. Herbert: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled in favor of Utah Planned Parenthood. The latter had claimed that the governor's stated reason for stopping funding for Planned Parenthood was pretextual, and that his true motivation was to punish the exercise of constitutional rights. Gorsuch dissented; he argued on procedural grounds for a rehearing and on substantive grounds that the governor had the authority to discontinue the funding.

Church-State Separation
American Atheists, Inc. v. Davenport: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled that Utah's action, erecting twelve-foot high white crosses along public highways to honor fallen state troopers, was an unconstitutional endorsement of a certain religion. Gorsuch dissented; he argued that the original decision was wrong because only an "observer [who was] biased, replete with foibles, and prone to mistake" would believe that the white crosses were endorsing a religion. [Sic!]

Green v. Haskell County Board of Com’rs: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled that the erection of a Ten Commandments monument on county courthouse grounds was an unconstitutional government endorsement of religion. The proposal for the monument had been approved by the county board when a local resident told the officials that "the Lord had burdened [his] heart" to create it. Gorsuch dissented; he argued that only "the perceptions of an unreasonable and mistake-prone observer" would lead to the majority's conclusion that religion was being endorsed.
[Again, sic! One may disagree with the "reasonable observer/endorsement" test to determine a constitutional violation. But it can hardly be denied that a perfectly rational observer might well perceive that religion was indeed being endorsed by a monument to the Decalogue--presented to Moses by God--on government grounds.]

Do those dissents of Gorsuch--those occasions where he felt strongly enough to disagree openly with his colleagues and author an opinion criticizing their decision--demonstrate that he's a moderate? Neutral? Balanced? Or ideologically ultra-conservative?

In the next post, we'll look at Gorsuch's dissents in criminal cases.
(It's not hard to guess what pattern emerges. Hint: it's neither pro-accused nor moderate.)
And following that, we'll look at his record to date on the Supreme Court.
(Same.)

[more of] Roberts in the Middle: The Chief Justice as Moderate (Part 2--In the Majority)

Clearly, some were very upset with Chief Justice Roberts' deciding vote to uphold Obamacare.
[The photo on the left is from Republic Magazine: The Voice of the Patriot Movement. See "John Roberts, Constitutional Traitor: Chief Justice Approves Obamacare Tax Mandate," June 28, 2012.]

As noted in the last post, the Obamacare case was not the first one in which Roberts departed from the other conservative Justices on his Court. In some cases he actually sided with the liberals. In some, he voted with the conservatives, but adopted a less hard-line position. In some, he endorsed a middle ground which literally split the difference between the Court's two ideological wings.

More than that, some of these cases were ideologically significant and politically charged. The Chief Justice's vote and position in each of them was less conservative than that of the most conservative Justices. And collectively, his votes and positions evinced more moderation--at least in these cases--than either the conservative or liberal poles of his Court.

Let's look at a few examples. Let's start with some cases in which Roberts was part of the majority.

Arizona's Immigration Law

Three of the Court's conservative Justices--Scalia, Thomas, and Alito--voted to uphold all (or in Alito's case, most) of the provisions of the Arizona law. According to them, the additional restrictions and criminal penalties imposed on illegal immigrants were within the power of the states to police activities within their borders.
The liberal Justices (together with Justice Kennedy) voted to invalidate every challenged provision of the law, but one. They argued that federal immigration law comprehensively regulated the treatment of illegal immigrants and, therefore, preempted any state interference.
Roberts joined the liberals, plus Kennedy, thereby giving them a majority. (Arizona v. U.S., 2012 [the same week as the Obamacare decision].)

Worker Anti-Retaliation Protection

The Court's most conservative Justices--Scalia and Thomas--voted to dismiss a claim of retaliatory discharge brought by a worker who was fired after he complained that employees were being shortchanged on work-time. The two argued that the Fair Labor Standards Act only protected workers who filed formal complaints, either with a government agency or in court.

The liberal Justices (as well as Kennedy and Alito) took the position that oral complaints sufficed. That a worker's person-to-person complaints to his supervisor and to company managers were adequate to trigger the law's protections against retaliation.

Roberts joined the Court's 4 liberals, plus Kennedy and Alito, in rejecting the view of Scalia and Thomas. (Kasten v. Saint-Gobain, 2011.)