Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part Seven – En Banc Decisions

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

The Senate Judiciary Committee finished its questioning of Judge Neil Gorsuch yesterday with relatively no substantive discussion of his judicial views.  Even by the standards set by previous nominees, Gorsuch has been particularly reticent, refusing to express opinions about seminal cases including Brown v. Board of Education.[1]  As such, observers trying to determine the kind of justice Gorsuch would be are forced to rely on his conduct on the Tenth Circuit Court of Appeals.  Today, we will look at Gorsuch’s behavior in en banc cases (cases where the Tenth Circuit sits as a whole) to draw conclusions about his behavior on the Supreme Court.

Taking Cases En Banc

En banc review of a panel decision is a relatively rare procedure.  The Tenth Circuit only sits en banc in cases of “exceptional public importance or on a panel decision that conflicts with a decision of the United States Supreme Court or [the Tenth Circuit].”[2]  Because the Tenth Circuit publishes the list of judges who vote in favor of en banc rehearing of panel decisions, Gorsuch’s votes on rehearing are public.

For his part, Gorsuch has rarely voted in favor of en banc rehearing, even in cases where other Republican appointees have advocated for it.  For example, Gorsuch declined to join Judge Michael McConnell’s call for en banc rehearing of an opinion denying felons the defense of “innocent possession” in firearm possession cases.[3]

In a handful of cases, however, Gorsuch has voted in favor of en banc rehearing.[4]

American Atheists, Inc. v. Davenport – This case involved a challenge to 12-foot tall memorial crosses erected by the Utah highway patrol association alongside public roadways.  The Tenth Circuit panel, led by Judge David Ebel struck down the crosses as a public endorsement of Christianity.[5]  Four Republican appointees on the Tenth Circuit, including Gorsuch, voted to rehear the case.[6]  Gorsuch wrote a dissent from the denial of en banc rehearing, arguing that the court’s use of the “reasonable observer” test in evaluating public monuments is a mistake.[7]  He also joined the principal dissent by Judge Paul Kelly.[8]

Little Sisters of the Poor Home of the Aged v. Burwell – This case involved a Catholic charity who objected to the provision of contraceptive coverage to its employees under the Affordable Care Act.  They also objected to submitting paperwork under the Act that would exempt them from providing such coverage.  A panel of the Tenth Circuit voted to reject the charity’s claim under the Religious Freedom Restoration Act (RFRA).[9]  Gorsuch voted with all four other Republican appointees on the Tenth Circuit for en banc rehearing.[10]  He also joined Judge Harris Hartz’s principal dissent from denial of rehearing.[11]

Pauly v. White – This case involved a suit against a police officer who shot a suspect to death through the window of his home.  A panel of the Tenth Circuit ruled 2-1 that the officer was not entitled to “qualified immunity” for his actions.[12]  The full Tenth Circuit split 6-6 on whether to take the case en banc, with Gorsuch voting to rehear the case.[13]  Gorsuch also joined the principal dissent by Judge Nancy Moritz, as well as a separate dissent by Judge Hartz.[14]

Planned Parenthood Assoc. Of Utah v. Herbert – This case involved a challenge to the Utah Governor’s decision to cut off “pass-through” federal funds to Planned Parenthood.  After a trial judge declined to enjoin the Governor’s decision, a panel of the Tenth Circuit reversed.[15]  Along with three other Republican appointees, Gorsuch voted to rehear the case en banc, and wrote the primary dissent in the case, arguing that the panel applied the wrong standard in granting the preliminary injunction.[16]

En Banc Opinions

Looking at the small universe of en banc cases in which Gorsuch has participated, it is notable how many opinions Gorsuch has written.  There are only a couple of en banc cases in which Gorsuch has not written either the majority opinion, a concurrence, or a dissent.[17]  Gorsuch’s most notable opinions are summarized below:

Zamora v. Elite Logistics, Inc. –   This case involved a Title VII employment discrimination suit.[18]  The court deadlocked 7-to-7 on the issue of whether summary judgment to the employer was appropriate, with Gorsuch on the side of the employer.[19]  Additionally, Gorsuch filed a concurrence, discussing the anti-discrimination provisions in the Immigration Reform and Control Act of 1986 (IRCA).[20]

Wilson v. Workman – This case involved the question of how much deference should be offered to state court proceedings that don’t consider evidence that would entitle defendants to relief.  Judge McConnell, writing for a majority of seven judges, held that, where a state court fails to take into account non-record evidence that “would entitle the petitioner to habeas relief,” the court is not entitled to deference under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).[21]  Gorsuch dissented, joined by four of his colleagues, arguing that AEDPA’s text contradicts McConnell’s reading.[22]

Hydro Resources, Inc. v. E.P.A. –  This case, previously discussed here, involved a challenge to an EPA rule requiring Indian tribes to obtain additional state permits to mine on their land.  Writing for a six judge majority, Gorsuch ruled that the tribes had satisfied the injury-in-fact requirement under Article III to bring suit.[23]  Five judges dissented from the ruling.[24]

The Wilderness Society v. Kane County – This case involved a challenge to a Utah county ordinance that allowed off-road vehicles onto federal land.  The en banc court, in an opinion written by Judge Paul Kelly and joined by five other judges, held that the environmental groups challenging the ordinance lacked standing to bring suit.[25]  Gorsuch, joined by Judges Mary Beck Briscoe and Terrence O’Brien, concurred in the judgment, arguing that there is no need to address standing in the case because the case is ultimately moot.[26]

Hobby Lobby Stores, Inc. v. Sebelius –  This case, previously discussed here, involved a challenge to the contraceptive mandate in the Affordable Care Act.  Gorsuch joined the plurality opinion, written by Chief Judge Timothy Tymkovich, holding that the plaintiffs had succeeded in their challenge to the mandate.[27]  He also concurred with the opinion, raising the issue of prudential standing.[28]

United States v. Rentz – This case, previously discussed here, involved the interpretation of a statute that criminalized the carrying of a firearm during a violent offense.  Writing for a six judge plurality, Gorsuch found that the act’s text prevented prosecutors from charging multiple counts for a single use or carry of a firearm.[29]  Four other judges joined a concurrence by Judge Scott Matheson,[30] which agreed with Gorsuch, while Judge Kelly dissented.[31]

Overall Assessment

Looking at Gorsuch’s en banc record, we conclude that he sits squarely in the mainstream of the conservative wing of the Tenth Circuit.  In every en banc decision he has made, Gorsuch has been joined by the majority of the Republican appointees on the court.  In contrast, most of the dissenters from Gorsuch’s decisions have been Democratic appointees.

Extrapolating from these cases, it is likely that Gorsuch will be a mainstream conservative on the Supreme Court.  His voting record would likely mirror that of Chief Justice John Roberts and Justice Samuel Alito, rather than that of Justice Anthony Kennedy.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

[1] See Alexander Bolton and Lydia Wheeler, Gorsuch Rewrites Playbook for Confirmation Hearings, TheHill, Mar. 22, 2017, http://thehill.com/homenews/news/325343-gorsuch-rewrites-playbook-for-confirmation-hearings.

[2] 10th Cir. R. 35.1(A).

[3] United States v. Baker, 523 F.3d 1141 (10th Cir. 2008) (McConnell, J.) (dissenting from denial of rehearing en banc).

[4] See, e.g., Pauly v. White, 817 F.3d 715, 716 (10th Cir. 2016) (noting that Judge Gorsuch voted to rehear case en banc, along with five other judges); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 799 F.3d 1315 (10th Cir. 2015) (noting that Judge Gorsuch joined four other judges in voting to rehear the case en banc).

[5] See American Atheists, Inc. v. Davenport, 616 F.3d 1145 (10th Cir. 2010).

[6] See American Atheists, Inc. v. Davenport, 637 F.3d 1095, 1101 (10th Cir. 2010) (noting that Judges Gorsuch, Kelly, Tymkovich, and O’Brien voted to grant en banc rehearing).

[7] See id. at 1108.

[8] Id. at 1101.

[9] Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 794 F.3d 1151 (10th Cir. 2015)

[10] Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 799 F.3d 1315 (10th Cir. 2015).

[11] See id. 

[12] See Pauly v. White, 814 F.3d 1060 (10th Cir. 2016).

[13] Pauly v. White, 817 F.3d 715, 716 (10th Cir. 2016) (noting that Judges Kelly, Hartz, Tymkovich, Gorsuch, Holmes, and Moritz voted to rehear the case).

[14] See id.

[15] Planned Parenthood Ass’n of Utah v. Herbert, 828 F.3d 1245, 1248 (10th Cir. 2016).

[16] Planned Parenthood Ass’n of Utah v. Herbert, 839 F.3d 1301, (Mem)–1302 (10th Cir. 2016).

[17] See, e.g., Contreras-Bocanegra v. Holder, 678 F.3d 811, 819 (10th Cir. 2012) (Lucero, J.) (writing for a unanimous court in reversing the Board of Immigration Appeals); United States v. Sturm, 672 F.3d 891, 892 (10th Cir. 2012) (Murphy, J.) (writing for a ten judge majority, including Gorsuch, in affirming a child pornograph conviction).

[18] United States v. Braden, 458 F. App’x 751, 753 (10th Cir. 2012).

[19] Zamora v. Elite Logistics, Inc., 478 F.3d 1160 (10th Cir. 2007).

[20] See id. at 1183 (Gorsuch, J., concurring).

[21]Wilson v. Workman, 577 F.3d 1284, 1287 (10th Cir. 2009).

[22] Id. at 1315 (Gorsuch, J., concurring).

[23] Hydro Res., Inc. v. U.S. E.P.A., 608 F.3d 1131, 1134 (10th Cir. 2010).

[24] See id. at 1131 (noting that Judges Ebel, Briscoe, Henry, Lucero, and Murphy dissented).

[25] The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1165 (10th Cir. 2011).

[26] Id. at 1174 (Gorsuch, J., concurring in the judgment).

[27] Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1152 (10th Cir. 2013), aff’d sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014).

[28] See id. at 1151 (Gorsuch, J., concurring).

[29] United States v. Rentz, 777 F.3d 1105, 1115 (10th Cir. 2015).

[30] Id. at 1116 (Matheson, J., concurring).

[31] Id. at 1130 (Kelly, J., dissenting).

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