When Judges Disagree – Dissents From Judge Barrett’s Positions

Judge Amy Coney Barrett, President Trump’s newest nominee to the U.S. Supreme Court has served on the U.S. Court of Appeals for the Seventh Circuit since 2017.  In that time, Judge Barrett has sat on a number of three-judge panels and has authored and joined hundreds of judicial opinions.  While most cases handled by the Seventh Circuit are decided unanimously, in order to understand what kind of justice Judge Barrett would be, it is instructive to look at the cases where her view differed from the other judges on the panel.  Last post, we looked at key cases in which Judge Barrett concurred or dissented from the majority on her panel.  Today, we review cases where Judge Barrett’s view attracted a majority, but where some judges disagreed.

Criminal Law/Procedure

Reynolds v. Hepp, 902 F.3d 699 (7th Cir. 2018) – This was a collateral challenge to a conviction where the state of Wisconsin cut off payment to the plaintiff’s attorney during his appeal.  Barrett joined the majority opinion by Judge David Hamilton dismissing the suit under the deferential standard of review.  Judge Diane Wood dissented, arguing that the attorney had prejudiced the petitioner by ceasing work on the appeal after the state had cut off funding, and that the state court decision denying relief was an unreasonable application of Supreme Court precedent.

Immigration Appeals

Alvarenga-Flores v. Sessions, 901 F.3d 922 (7th Cir. 2018) – Mr. Alvarenga-Flores was seeking asylum in the United States, arguing that he was under threat from gang members in El Salvador.  An immigration judge ruled against him, finding him not credible, and the Board of Immigration Appeals affirmed.  Barrett wrote for the panel majority in affirming the Board.  Judge Thomas Durkin, sitting by designation, dissented in part, disagreeing that the adverse credibility determination was justified.

Yafai v. Pompeo, 912 F.3d 1018 (7th Cir. 2019) – In this case, the plaintiff, a U.S. citizen, challenged the denial of a visa to his wife, alleging that the consular official made up a claim that his wife had attempted to smuggle children into the United States.  Barrett wrote for the majority in dismissing the claim under the consular non-reviewability doctrine, which holds that visa decisions cannot be challenged in federal court.  Judge Kenneth Ripple dissented, arguing that the doctrine departed from Supreme Court precedent and was read too broadly by the majority.  The Seventh Circuit later denied en banc rehearing over the opinion, with Judges Diane Wood, Ilana Rovner, and David Hamilton dissenting, stating that the majority opinion was “a dangerous abdication of judicial responsibility.”  Barrett authored a concurrence, joined by Judge Joel Flaum, defending her opinion.  In the concurrence, Barrett argued that her position was compelled by Supreme Court precedent.

Civil Procedure

Webb v. Financial Indus. Regulatory Auth., 889 F.3d 853 (7th Cir. 2018) – This case involved a breach of contract action brought against FINRA based on the failure to train arbitrators.  Barrett wrote for the panel majority in dismissing the claim, finding that the amount in controversy requirement was not satisfied for diversity jurisdiction.  Judge Kenneth Ripple dissented, arguing that, accepting the plaintiffs’ claims at the pleading stage, the amount had been satisfied.

Employment Law

United States EEOC v. Autozone, Inc., 875 F.3d 860 (7th Cir. 2017) – The question in this case was whether a business’ decision to intentionally segregate their employees by race between stores violated Title VII of the Civil Rights Act.  A panel of the Seventh Circuit held that, without evidence that such division adversely affected the employees, there was no Title VII violation.  The Seventh Circuit then denied en banc rehearing, with Barrett voting not to rehear the decision.  In her dissent from denial of rehearing, Judge Diane Wood argued that the decision essentially enshrined “separate but equal” into Title VII.

Kleber v. CareFusion Corp., 914 F.3d 480 (7th Cir. 2019) (en banc) – The key question in this case was whether the Age Discrimination in Employment Act (“ADEA”) allowed job applicants to sue under a disparate impact theory of discrimination.  A seven-judge majority on the court, including Barrett, joined the opinion of Judge Michael Scudder, who held that job applicants, unlike employees, were not permitted to file disparate impact claims under ADEA.  Judge David Hamilton dissented on behalf of four judges.

Equal Protection

St. Joan Antida High Sch. Inc. v. Milwaukee Pub. Sch. Dist., 919 F.3d 1003 (7th Cir. 2019) – This case involved a challenge to the Milwaukee School District’s policy of adding extra restrictions to private schools who wished to participate in the district’s busing program.  Barrett joined Judge Amy St. Eve in finding the differential treatment to be constitutional under rational basis review.  Judge Diane Sykes dissented.

Van Dyke v. Vill. of Alsip, 2020 U.S. LEXIS 27943 (7th Cir. Sept. 2, 2020) – This case involved a challenge to a zoning restriction that prevented the plaintiff from renting out her garden apartment.  The Seventh Circuit, with Barrett joining, rejected the plaintiff’s takings and equal protection claims in an unsigned order.  Judge Ilana Rovner dissented, finding that the plaintiff had stated a claim on her equal protection challenge.

Tort Litigation

Chronis v. United States, 932 F.3d 544 (7th Cir. 2019) – The question in this case was whether the district court erred in dismissing the plaintiff’s tort claim against the federal government for failure to send a demand letter before suing.  Barrett wrote for the panel majority in dismissing the claim, finding that the plaintiff had failed to make a proper demand before suing.  Judge Ilana Rovner dissented, arguing that the court should adopt a more flexible standard to permit plaintiffs to be able to not have cases thrown out because of “technical deficiencies.” 

1983 & Prisoner Suits

J.K.J. v. Polk Cty., 960 F.3d 367 (7th Cir. 2020) (en banc) – This case involved a civil rights suit brought by two women who were repeatedly sexually assaulted by a correctional officer.  A panel of the Seventh Circuit overturned a jury verdict in favor of the plaintiffs, and the Seventh Circuit reversed the panel on a 7-4 vote.  Barrett joined the majority opinion by Judge Michael Scudder upholding the jury verdict in favor of the women.  Judges Frank Easterbrook and Michael Brennan authored separate dissents.

Henry v. Hulett, 2020 U.S. App. LEXIS 25390 (7th Cir. Aug. 11, 2020) (en banc) – This was a class action suit brought by inmates at Lincoln Correctional Center who were subjected to mass strip searches as part of cadet training exercises.  Barrett joined the majority on the en banc court in holding that the Fourth Amendment protected the right of bodily privacy to the inmates, and thus, summary judgment should not have been granted against the plaintiffs.  Judge Frank Easterbrook was the sole dissenter, finding that there was no evidence of bad intent by the prison official.

Hildreth v. Butler, 2020 U.S. App. LEXIS 26377 (7th Cir. Aug. 19, 2020) – In this case, a 2-1 panel of the Seventh Circuit denied the appeal of a prisoner alleging that prison officials failed to refill needed medication, holding that there was insufficient evidence of deliberate indifference.  A judge sought an en banc vote, and the court denied rehearing 7-4, with Barrett voting to deny en banc rehearing.  

When Judges Disagree – Judge Amy Coney Barrett’s Concurrences and Dissents

Judge Amy Coney Barrett, President Trump’s newest nominee to the U.S. Supreme Court has served on the U.S. Court of Appeals for the Seventh Circuit since 2017.  In that time, Judge Barrett has sat on a number of three-judge panels and has authored and joined hundreds of judicial opinions.  While most cases handled by the Seventh Circuit are decided unanimously, in order to understand what kind of justice Judge Barrett would be, it is instructive to look at the cases where her view differed from the other judges on the panel.  To that end, we have summarized key cases in which Judge Barrett concurred or dissented from the majority on her panel.  We’ll then follow up with a post where Judge Barrett’s view attracted a majority, but where some judges disagreed.

Criminal Law/Procedure

Schmidt v. Foster, 891 F.3d 302 (7th Cir. 2018), rev’d en banc, 911 F.3d 469 (7th Cir. 2018).   – This was a collateral challenge to the defendant’s murder conviction.  At his trial, the defendant had sought to use a provocation defense. To ensure that the defendant had an evidentiary basis for the defense, the trial judge interviewed him in an ex parte hearing, with the defense attorney present but unable to participate.  On habeas review, the majority of the Seventh Circuit overturned the conviction, finding that preventing the defendant from accessing his counsel during the ex parte hearing violated his rights under the Sixth Amendment.  Barrett dissented, arguing that there was no evidence that the defendant’s rights were violated.  Barrett’s view was ultimately vindicated by the en banc Seventh Circuit, where the full court held in a 8-3 decision that, while the ex parte hearing was “constitutionally dubious,” it could not be reversed under the deferential standard that federal courts must apply when reviewing state court decisions.

Sims v. Hyatte, 914 F.3d 1078 (7th Cir. 2019).  – This was a collateral challenge to the defendant’s attempted murder conviction.  After his conviction, it came to light that the prosecutor had withheld evidence that the sole witness to identify the defendant had undergone hypnosis prior to trial to enhance his recollection of the incident.  On habeas review, the majority of the Seventh Circuit panel overturned the conviction, in an opinion by Judge William Bauer.  Bauer found that the evidence was required to be disclosed under the Supreme Court’s rulings in Brady v. Maryland and Giglio v. United States, and that the prosecutor’s case rested on the eyewitness testimony, making the disclosure essential.  Barrett dissented, arguing that, while the lack of disclosure did violate the defendant’s rights under Brady, the state court decisions refusing relief were not an unreasonable application of Supreme Court precedent, and, as such, there was no basis for the Seventh Circuit to grant relief.  

Chazen v. Marske, 938 F.3d 851 (7th Cir. 2019). – The question in this case was whether the petitioner’s conviction for “escape” qualified as a violent felony under the Armed Career Criminal Act.  Judge Michael Scudder wrote for the court in ruling that the conviction did not so qualify based on recent precedent narrowing the scope of the Act.  Barrett concurred, but wrote separately to argue that the court needs to simplify the caselaw addressing such petitions.

United States v. Rutherford, 810 Fed. App’x 464 (7th Cir. June 23, 2020).This suit involved an appeal filed by an individual seeking resentencing under the First Step Act.  In an unpublished order, the Seventh Circuit exercised jurisdiction but affirmed the district court’s decision regarding the sentence.  Barrett dissented, arguing that the appeal was not timely, and, as such, the Seventh Circuit lacked jurisdiction over the appeal. 

United States v. Wilson, 963 F.3d 701 (7th Cir. 2020). – The question in this case was whether police had reasonable suspicion to stop and search the defendant based on a dispatch call description that did not match the defendant.  Judge Daniel Manion, writing for the court, found that the police had reasonable suspicion based on the totality of all the facts.  Barrett concurred, noting that, while the defendant “wasn’t even in the ballpark” when compared to the dispatch description, his flight from the police justified their subsequent stop and search under Supreme Court precedent. 

United States v. Uriarte, 2020 U.S. App. LEXIS 29234 (7th Cir. 2020) (en banc).In this case, an 8-3 majority of the en banc Seventh Circuit held that the First Step Act could be applied to the benefit of a defendant who had committed his offense and was convicted before the Act’s passage, but had his sentence vacated and was resentenced after. Barrett authored a dissent joined by Judges Michael Brennan and Michael Scudder, arguing that the Act should not apply to the defendant because he was initially sentenced prior to the Act’s passage, and that the subsequent vacating of the sentence by the Seventh Circuit did not allow him to take advantage of the Act. 

Second Amendment

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019). – This was a Second Amendment challenge to federal statutes that barred the plaintiff, who had been convicted of one count of mail fraud, from owning a gun as a felon.  Judge Joel Flaum, writing for the panel majority, rejected the challenge, finding that the Supreme Court had expressly noted the constitutionality of felon dispossession laws under D.C. v. Heller and McDonald v. City of Chicago.  Judge Flaum then found that historical evidence regarding the scope of felon dispossession was inconclusive, and, applying intermediate scrutiny, upheld the laws. Barrett dissented, arguing that the history of gun rights showed that felons were traditionally only barred from holding weapons when there was evidence of their dangerousness.  As such, Barrett argued that a blanket ban on felons owning weapons violated the Second Amendment. 

Section 1983 Suits

McCottrell v. White, 933 F.3d 651 (7th Cir. 2019). – This case involved a 1983 suit for injuries brought by inmates in an Illinois prison who were injured after guards fired warning shots with a shotgun over a crowded prison hall.  Judge Ilana Rovner, writing for the panel majority, held that the injuries suffered by the inmates were sufficiently serious to potentially violate the Eighth Amendment, and that disputes of material facts between the parties needed to be resolved by a jury.  Barrett dissented, arguing that, as plaintiffs admitted that the guards were not intentionally trying to hit anyone with the shotgun, they could not prove that the guards acted “maliciously and sadistically” and, as such, could not recover. 

Williams v. Wexford Health Sources, Inc., 957 F.3d 828 (7th Cir. 2020).The question in this case was whether, under Illinois law, a prisoner exhausted his administrative claims by filing an emergency petition in the prison system. Judge Diane Wood, writing for the panel, held that the prisoner had exhausted his remedies as he reasonably believed that filing the emergency procedure was necessary.  Barrett concurred, disagreeing that the inmate had exhausted his remedies, but arguing that the prison had failed to prove lack of exhaustion under their burden. 

Reproductive Rights

Planned Parenthood of Ind. & Ky. v. Box, 949 F.3d 997 (7th Cir. 2019) (en banc). – After a district court judge granted an injunction banning a series of Indiana restrictions on abortion clinics, and a 2-1 panel of the Seventh Circuit affirmed, the state sought en banc rehearing before the 11 judge court.  The court denied rehearing by a 6-5 margin.  While Barrett did not write her own dissent, she joined a dissent to denial of en banc rehearing written by Judge Michael Kanne, who argued that the full court should have considered the scope of pre-enforcement challenges to state laws. 

Administrative Law

Cook Cnty. v. Wolf, 962 F.3d 208 (7th Cir. 2020). – This was a challenge to the Trump Administration’s “public charge” rule, which interpreted the Immigration and Nationality Act (“INA”) to deny admission to the U.S. or adjustment of status to any individual who receives certain cash and non-cash government benefits.  Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois granted an injunction against the regulation, and a divided panel of the Seventh Circuit denied to stay Judge Feinerman’s injunction.  Barrett dissented against the denial of stay.  After the Supreme Court stepped in and stayed the injunction, the Seventh Circuit affirmed Feinerman’s ruling striking down the regulation on the merits.  Barrett dissented again, arguing that the regulation is a reasonable interpretation of the INA’s ambiguity on defining a public charge. 

The Post-RBG World

Justice Ruth Bader Ginsburg: trailblazing icon; civil rights veteran; judicial superstar; the Notorious RBG.  Justice Ginsburg was an institution in American law and popular culture, and it’s difficult to imagine a world, let alone a court, without her characteristic witty asides and sharp questions.  Given Justice Ginsburg’s current status as a liberal icon, it’s hard to believe that she was actually considered a conservative choice when President Clinton picked her for the Supreme Court in 1993, pushed by Sen. Orrin Hatch (R-UT) as a moderate consensus-builder.  Now, whether Justice Ginsburg shifted leftwards on the court or whether the court moved to the right depends on who you talk to, but Justice Ginsburg’s passing certainly leaves a void on the Supreme Court’s left flank.  Sadly, we, as a country, don’t have much time to mourn and reflect upon her life and legacy.  You see, the battle is coming.

“Hypocrisy” v. Politics

The last Supreme Court Justice to die on the Court was Justice Antonin Scalia.  The conservative powerhouse passed away on February 13, 2016, and Senate Majority Leader Mitch McConnell almost immediately declared that, because it was an election year, the Senate would not consider a nomination to fill the vacancy.  Surprising almost no one, McConnell now has vowed that the Senate will vote on President Trump’s nominee, even though this vacancy opened more than seven months later into the year than the vacancy from Justice Scalia, and though Americans are already voting to potentially replace President Trump.

Now, some have decried the hypocrisy of this, while others have defended his stance, following the principle that it is reasonable for a Senator to set different standards for members of your own party versus another party.

Regardless, McConnell has a thin needle to thread here.  As of this writing, already two Senate Republicans have come out in opposition to considering any nominee before the November elections, which means McConnell can afford only one more defection before he loses his leverage.  Now, some  argue that McConnell would not take such a firm stance if he did not have the votes to back it up.  However, those individuals would do well to look at Sen. John McCain’s defeat of the ACA Repeal in 2017 and the last-minute sinking of Ryan Bounds’ nomination to the Ninth Circuit in 2018.  The Majority Leader, masterful as he is, is not infallible.

Additionally, the timing of this vacancy is not great for Republicans.  We are now six weeks to November 3, election day.  No nominee has been confirmed within six weeks of announcement since Justice John Paul Stevens in 1975.  Simply put, there isn’t enough time.  The modern confirmation process (at least on the Supreme Court level) takes too long.

So, even if President Trump announces a nominee today, the vote on confirmation isn’t coming until the lame duck, at which point, either Trump has won re-election, which eases the pressure, or he has lost, which opens a new Pandora’s box.

The Front-Runners

Ever since her confirmation to the Seventh Circuit in 2017, Judge Amy Coney Barrett has been considered heir apparent to the Supreme Court.  It’s understandable why: Judge Barrett is well-credentialed, young (48), and very conservative.  She is rightly deemed the frontrunner to fill this vacancy.  She will also probably be the nominee.  President Trump, for all his mercurial temperament, has been fairly stolid in his Supreme Court choices, both times picking the conventional frontrunners over less conventional choices.  In any other year, one could confidently say that Judge Amy Coney Barrett will be the nominee.

However, this is an election year.  Specifically, it’s an election year in which the President has been consistently trailing his opponent in polls and one where he needs to use the nomination as a tool to upend the stability of the race.  As such, it would not surprise me to see the President turn to two more unconventional choices from his Supreme Court list.

One is Judge Barbara Lagoa from the Eleventh Circuit.  Lagoa was specifically identified by the President as a possible nominee for this seat, and has two major plus points going for her.  First, Lagoa is from Florida, a key swing state where the President needs to win in order to secure re-election.  Second, Lagoa is Hispanic (in fact, the only Hispanic nominee to the Court of Appeals made by President Trump).  In an election where Hispanics make up a key voting bloc, nominating Lagoa could be a key strategic move by the President to seek an advantage.

The other is Judge Bridget Bade from the U.S. Court of Appeals for the Ninth Circuit. Although she is also on the President’s shortlist, Bade’s name doesn’t come up as often as Lagoa’s or Barrett’s.  However, Bade could neutralize a key ticking time bomb for the President.  Namely, in Arizona, appointed Sen. Martha McSally is consistently running behind Democratic candidate Mark Kelly in the polls.  If Kelly defeats McSally, he could, in theory, be appointed to replace her immediately (as this race is a special election), which would cut the GOP majority they’ll need to confirm a nominee.  Appointing Bade could put both Kelly and Sen. Kyrsten Sinema in a tricky position, as they’d have to stand against a popular judge from their own state.  Even if one of them flips to support Bade, that’d ease the path to confirmation quite significantly.

The Storm to Come

As noted above, regardless of who the nominee will be, the risks to moving forward on a nominee are great.  Gone are the days when Supreme Court  confirmations were largely intellectual exercises.  It is now a body sport where nothing less than total victory is celebrated.  Unfortunately, regardless of whoever wins this particular nomination fight, the country as a whole is likely to have lost.

One can only hope that advocates and senators avoid bombast and brinksmanship, set out clear lines of principle in nominations and confirmations that apply equally to nominees of either party, and take us back to a bipartisan and nonpartisan confirmation process.  Then again, I’m not holding my breath.  The era of RBG is truly over.

Judge Kavanaugh and the Failure of the Vetting Process

This blog started twenty months ago with a post titled “Why Vetting Matters.”  That post noted:

“The modern appointments process involves several layers of “vetting” of potential judicial nominees.  Candidates are generally first evaluated by their home state Senators and their staff.  Then, they are vetted again by the White House Counsel’s office and the Department of Justice.  They are then examined by the FBI and the American Bar Association (ABA).  Upon their nomination, their records are scrutinized by the Senate Judiciary Committee, as well as interest groups on all sides of the political spectrum.  At each level of review, the vetters seek to ensure that the candidate meets their personal and ideological criteria for appointment.”

Today, what we are seeing with regard to Judge Brett Kavanaugh is a failure of that process.  A compelling and credible allegation of sexual assault has been raised against the judge, an allegation that did not surface during the vetting that he underwent for the Supreme Court, nor during his prior vetting for his current seat on the D.C. Circuit.  Some have used this point to suggest that the allegation, raised by Dr. Christine Blasey Ford, should not be believed.  I would argue, rather, that it is an indictment of our current vetting process and its limitations.

As noted in our opening post, the current vetting system for judicial nominees involves several entities, including the White House, the Department of Justice, the FBI, and Senate staff.  In their investigation, the “vetters”, depending on their particular role, review all the written and background material submitted by the nominee, do criminal background checks, and conduct interviews with the nominee’s friends, colleagues, and associates.  Again, depending on their role, the vetters might be looking for ideological inconsistencies, intellectual ability, or issues with the nominee’s truthfulness or character.  The involvement of these different entities, along with outside groups such as the American Bar Association, is, in theory, supposed to ensure a thorough vetting of any nominee.

In practice, however, there are still holes in this process.  Take allegations of sexual assault, for example, comparable to those made by Dr. Ford.  Where the allegations have not been reported to the police, they will not show up in a criminal background check.  Unless there has been news coverage or some public record of the allegations, they will not show up in Google or record searches.  Furthermore, unless the nominee volunteers the information, it will not be revealed in the disclosures.  As such, investigators generally probe such allegations of misconduct in their private interviews with the nominee’s friends, family, and colleagues.

However, even these interviews are unlikely to reveal such misconduct.  Most DOJ, FBI, and ABA interviews are conducted either with friends and colleagues invested in the nominee’s success, or, with opposing counsel and judges who are too far removed to be aware of, let alone comfortable revealing, any allegations of impropriety.  As such, unless an individual alleging misconduct is directly interviewed, it is unlikely that their allegations would be revealed in the interview process.

In the case of Judge Kavanaugh, the flaws in the vetting process may have been magnified by its speed.  Justice Anthony Kennedy announced his retirement from the U.S. Supreme Court on June 27, 2018.  Judge Kavanaugh was announced as the nominee on July 9, just 12 days later.  In comparison, President Obama nominated Justice Sotomayor 26 days after Justice Souter’s leaked retirement in 2009, and Justice Kagan 31 days after Justice Stevens’ retirement in 2010.  Similarly, his nomination of Judge Merrick Garland in 2016 came 31 days after Justice Scalia’s untimely passing.  While Justice Gorsuch’s nomination came 11 days after President Trump’s inauguration, it was to a vacancy that had been pending almost a year.  Even assuming that Judge Kavanaugh had been partially vetted before Justice Kennedy’s retirement, the pace of his nomination was still incredibly fast.

Similarly, the Senate Judiciary Committee held a hearing on Judge Kavanaugh less than two months after his nomination despite the Committee not having a chance to look over significant portions of his record.  As such, at the time of the hearing, only one of the 21 Judiciary Committee senators was even aware of Dr. Ford’s allegations.

At any rate, any deficiencies in the process could have been corrected once Dr. Ford’s allegations went public.  At that point, the White House could have reopened Judge Kavanaugh’s background check, allowing the FBI to investigate the allegations (something they have done hundreds of times before).  The White House chose not to.  The Senate Judiciary Committee could have chosen to take sworn testimony from Dr. Ford’s corroborators, including those with whom she shared the allegations, and those who could corroborate the events in question.  The Committee chose not to.

Instead, the American people were subjected to the spectacle of a sexual assault survivor being cross-examined by a prosecutor, while a gallery of stone-faced senators watched.  No other witnesses were called, and no follow up questions were asked.  If it was not for a carefully-negotiated rebellion on the part of Sen. Jeff Flake, there would have been no follow-up from Dr. Ford’s testimony at all.

Regardless of what the reopened FBI investigation uncovers, this saga has already laid bare the weaknesses of the current vetting process.  Perhaps there is no foolproof way that unreported allegations of sexual assault can be uncovered through the vetting process.  However, it is important to recognize that.  Given the documented barriers to reporting sexual assault claims, there are likely other unreported claims against other federal judges and nominees.  As such, the next time that similar allegations are raised against a nominee, vetters may need to look in the mirror before asking why the allegations were not uncovered earlier.

This blog reflects solely the views of the author and does not reflect the positions of any of the other writers or researchers at the Vetting Room.



Judge Brett Kavanaugh – First Amendment Rulings

The First Amendment to the U.S. Constitution is colloquially known for establishing the right to free speech, but it actually encompasses several rights, including the freedom of the press, and the right of assemble, demonstrate, and petition your elected representative.  Additionally, the religion clauses of the First Amendment guarantee the right to practice your religion without government interference, as well as prohibiting government endorsement or establishment of religion.  The myriad rights recognized by the First Amendment have been further fleshed out by the Supreme Court and lower courts.  Kavanaugh himself has written several opinions in First Amendment cases.  In these opinions, summarized below, Kavanaugh has generally taken an expansive view of First Amendment rights, showing a willingness to strike down regulations that impinge, even slightly, on First Amendment territory.

Freedom of Speech

The First Amendment guarantees the freedom of speech to all Americans.  In other words, we cannot be punished by the government for expressing our views.  As noted above, Kavanaugh has taken an expansive view of this freedom, particularly as it relates to campaign and communication regulations.

Campaign Regulations

The most recent frontier in free speech cases has involved campaign finance.  In its landmark decision in Citizens United v. FEC, the Supreme Court struck down government restrictions on independent expenditures made by corporations and unions in campaigns, ruling that such restrictions were an infringement of the First Amendment.[1]  Since then, numerous campaign regulations have been challenged on First Amendment grounds.

In 2016, Kavanaugh decided one such challenge in holding that the Independence Institute, a non-profit organization, should be allowed to proceed in its First Amendment challenge against federal regulations requiring them to disclose their donors.[2]  In his majority opinion, Kavanaugh acknowledged that the Supreme Court had upheld disclosure requirements in the past (including in Citizens United) but noted that the Independence Institute was a 501(c)(3) organization, rather than the 501(cv)(4) involved in Citizens United.[3]  This distinction, Kavanaugh ruled, was sufficient to allow the case to proceed.[4]

In dissent, Judge Robert Wilkins argued that the First Amendment challenge was precluded by Citizens United, and that the factual distinctions drawn by Kavanaugh were “immaterial.”[5]

Kavanaugh also has the notable distinction of having struck down campaign finance regulations on First Amendment grounds before Citizens United.  In Emily’s List v. FEC, Kavanaugh struck down a series of FEC regulations limiting the use of “soft money” by non-profits in election spending.[6]  In striking down the regulations, Kavanaugh noted:

“Donations to and spending by a non-profit cannot corrupt a candidate or officeholder, at least in the absence of some McConnell-like evidence establishing such corruption or the appearance thereof.”[7]

Judge Janice Rogers Brown refused to join Kavanaugh’s First Amendment analysis in the case, noting:

“I have grave doubts about the court’s analysis, which bears at most a passing resemblance to the parties’ briefs, and which will profoundly affect campaign finance law in this circuit.”[8]

Communications Regulation

Kavanaugh has also sought to apply the First Amendment in the context of communications regulation.  As the D.C. Circuit upheld Federal Communications Commission (FCC) regulations barring exclusive contracts between cable operators and affiliated cable programming networks, Kavanaugh dissented.[9]  In his dissent, Kavanaugh argued, as cable networks and operators both engage in protected speech, that the FCC regulations (which are intended to avoid monopolies) implicate First Amendment rights.[10]  Applying the First Amendment, Kavanaugh found that a changed competitive marketplace for cable means that the FCC bans no longer further an interest in fair competition and must be struck down.[11]


The First Amendment also protects a free press from both government censorship and excessive regulation or litigation.  As such, the Supreme Court has recognized fairly broad protections from journalists against defamation suits (which seek damages for the publication of false information).  Kavanaugh reaffirmed this principle in one notable defamation case.[12]  In the case, a prisoner filed a defamation action against the Bureau of National Affairs (BNA) for attributing some negative comments during his sentencing hearing to the judge rather than the prosecutor.[13]  After the district judge denied BNA’s motion to dismiss, Kavanaugh reversed the ruling on appeal, noting that the First Amendment protected the BNA’s actions as long as they were not made with “actual malice” and that the plaintiff could not make such a showing.[14]

Freedom of Assembly + Petition

In addition to the Freedom of Speech and the Press, the First Amendment encompasses the Freedom of Assembly, or the right of people to come towards to express their ideas collectively.  Encompassed within that right is the right to associational freedom: the right to join organizations that are formed around causes you believe in; as well as the right not to join organizations you disagree with.  Additionally, the First Amendment includes the right to peacefully petition your elected representatives on issues that are important to you.

Kavanaugh authored a notable opinion discussing the latter right.  In We the People Foundation, Inc. v. United States, the plaintiffs submitted “petitions with extensive lists of inquiries” related to questions about the government’s violation of the taxing and war powers clauses.[15]  When the government agencies to whom the petitions were addressed failed to respond, the plaintiffs brought suit, alleging two claims: first, that the First Amendment right to petition encompassed a right to a “good faith exchange” between the government and the petitioner; second, that the First Amendment prohibited the government from retaliating against plaintiffs for filing the petition.[16]  Kavanaugh wrote for a majority of the D.C. Circuit rejected the claim under the First Amendment, finding that, under the Supreme Court’s holding in Smith v. Arkansas State Highway Employees, there was no “affirmative obligation” under the First Amendment to have the government respond to a petition.[17]

In concurring with the main opinion, Judge Judith Ann Wilson Rogers noted the depth of historical sources that plaintiffs had cited, and suggested that, as such evidence had not presented to the Supreme Court in prior cases, that the outcome of Smith and other precedent may have been different had the record on the right to petition been fully explored.[18]

Freedom of Religion

The Free Exercise Clause of the First Amendment protects the right to worship and believe in accordance with any and no faith.  Congress extended the protections of the Free Exercise Clause in the Religious Freedom Restoration Act (RFRA), which required any government action or regulation that substantially burdened a sincerely held religious belief to be narrowly tailored to a compelling governmental interest.

In one notable case, a panel of the D.C. Circuit found that the religious rights of Catholic nonprofits were not violated by the ACA’s “religious accommodation” opt-out from its contraceptive mandate.[22]  The full D.C. Circuit then declined to take the case en banc, with Kavanaugh in dissent.  In his dissent, Kavanaugh argued that the challenged accommodations substantially burden Catholic non-profits by making them “conduits” to providing contraceptive coverage through an alternative means.[23]

Establishment of Religion

The Establishment Clause of the First Amendment prevents the government from endorsing, establishing, or placing a stamp of approval on one faith or kind of religious service.  While Kavanaugh has generally interpreted the other rights in the First Amendment broadly, he has not done so for the Establishment Clause.

In In re Navy Chaplaincy, Kavanaugh rejected an Establishment Clause challenge to the retirement system for Navy Chaplains, which plaintiffs alleged discriminated in favor of Catholic chaplains.[19]  Kavanaugh found that the plaintiffs, current and retired non-liturgical Protestant chaplains lacked standing to raise an Establishment Clause claim, finding that being exposed a “message” of preference for Catholic chaplains is insufficient to constitute an injury.[20]

In dissent, Judge Judith Ann Wilson Rogers wrote that Kavanaugh’s opinion “ignores all of this precedent in adopting the novel conception that appellants are not harmed for purposes of standing…”[21]


[1] See Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).

[2] Ind. Institute v. Fed. Election Comm’n, 816 F.3d 113 (D.C. Cir. 2016).

[3] Id. at 117.

[4] Id.

[5] See id. (Wilkins, J., dissenting).

[6] Emily’s List v. Fed. Election Comm’n, 581 F.3d 1, 4 (D.C. Cir. 2009).

[7] See id. at 18 (citations omitted) (emphasis in original).

[8] See id. at 25 (Brown, J., concurring in part).

[9] Cablevision Sys. Corp. v. F.C.C., 597 F.3d 1306, 1315 (D.C. Cir. 2010) (Kavanaugh, J., dissenting).

[10] Id. at 1322.

[11] Id. at 1325.

[12] Kahl v. Bureau of Nat’l Affairs, Inc., 856 F.3d 106 (D.C. Cir.), cert. denied sub nom. Von Kahl v. Bureau of Nat. Affairs, Inc., 138 S. Ct. 366, 199 L. Ed. 2d 269 (2017).

[13] See id. at 110.

[14] Id. at 117-18.

[15] We the People Found., Inc. v. United States, 485 F.3d 140, 141 (D.C. Cir. 2007).

[16] Plaintiffs alleged that the federal government had retaliated by prosecuting plaintiffs who refused to pay federal income taxes out of protest.

[17] See id. at 145.

[18] See id. at 145-48 (Rogers, J., concurring).

[19] In re Navy Chaplaincy, 534 F.3d 756, 758 (D.C. Cir. 2008).

[20] Id. at 764.

[21] Id. at 770-71 (Rogers, J., dissenting).

[22] Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229 (D.C. Cir. 2014).

[23] Priests for Life v. U.S. Dep’t of Health & Human Servs., 808 F.3d 1, 14 (D.C. Cir. 2015) (Kavanaugh, J., dissenting from denial of rehearing en banc).

Judge Neil Gorsuch CONFIRMED as Associate Justice to the United States Supreme Court

The U.S. Senate has confirmed Judge Neil Gorsuch to serve as Associate Justice to the U.S. Supreme Court, filling the seat vacated last year with the death of Associate Justice Antonin Scalia.  The 49 year old Gorsuch will be President Trump’s first appointee to the high court, as well as the first Article III judge he has successfully appointed.

The final roll call on the nomination was 54-45, the second narrowest margin for a successful Supreme Court nominee in modern times (the narrowest being Justice Clarence Thomas’ 52-48 confirmation in 1991).  Every Republican Senator supported confirmation, joined by 3 Democratic Senators: Senators Joe Donnelly (D-IN), Heidi Heitkamp (D-ND), and Joe Manchin (D-WV).

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).

Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part Six – Criminal Procedure

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

Much of the question of Judge Neil Gorsuch on the second day of his confirmation hearing focused on his views on separation of powers, civil rights, and constitutional interpretation.  Comparatively little time was spent on Gorsuch’s views on criminal cases.  While we have previously explored Gorsuch’s jurisprudence on the Fourth Amendment, we will now turn to his record on the Fifth and Sixth Amendments.

Fifth Amendment – Prohibition Against Double-Jeopardy

The Double Jeopardy Clause of the Fifth Amendment bars the government from trying an individual twice for the same crime.  Practically, this means that a defendant who has been acquitted of an offense cannot be retried of the same offense.[1]  It also prevents the government from retrying a case that has been dismissed by a judge for lack of evidence.[2]  However, it does not prohibit the government from retrying a defendant where a conviction has been reversed because of a trial error unrelated to guilt or innocence.[3]

For his part, Gorsuch has shown a willingness to strictly enforce the Double Jeopardy Clause.  For example, in one case, Gorsuch overturned the conviction of a man for first degree murder and second degree murder, where the convictions were drawn from the death of the same victim.[4]  In another case, Gorsuch affirmed the dismissal of cumulative federal law punishments under the Assimilative Crime Act.[5] 

Nevertheless, Gorsuch has rejected Double Jeopardy claims in a few cases.  In one case, Gorsuch found that retrying a defendant whose initial conviction had been reversed for ineffective assistance of counsel was not barred by Double Jeopardy.[6]  In another case, he found that trying a defendant for conspiracy in addition to the underlying offense did not violate Double Jeopardy.[7]

Fifth Amendment – Right Against Self-Incrimination

The Fifth Amendment protects individuals from being forced in incriminate themselves in criminal cases.  This principle was applied by the Supreme Court in Miranda v. Arizona in ruling that any statements elicited from witnesses who had not been read their rights could be excluded in subsequent criminal proceedings.[8] 

Gorsuch has generally sided with the government in Fifth Amendment challenges to confessions.  In United States v. Braden, Gorsuch found that a defendant’s waiver of her Miranda rights was not rendered invalid by her intoxication at the time.[9]  Similarly, in another case, Gorsuch rejected a challenge against a prosecutor who had negatively commented on a defendant’s failure to present evidence.[10]

In contrast, in United States v. Benard, where the Tenth Circuit rejected Fifth Amendment challenges in a firearm possession case, Gorsuch dissented.[11]  In dissent, Gorsuch argued that the government had failed to prove that statements admitted in violation of the Fifth Amendment did not affect the defendant’s ultimate conviction.[12]

Sixth Amendment – Right to Counsel

The Sixth Amendment protects our right to counsel during criminal proceedings.  The Supreme Court has held that this right is violated when defense counsel is ineffective.[13]  A counsel’s performance is ineffective when it meets two criteria: it falls below an objective standard of reasonableness (deficient); and it prejudices the defendant (prejudice).[14]

In most of the ineffective assistance of counsel cases he addressed, Gorsuch rejected the claims on the second prong of Strickland, arguing that the deficient performance of defense counsel did not change the outcome of the trial.[15]  In a handful of cases, Gorsuch rejected the claims on the first prong of Strickland, finding that counsel’s performance was not deficient.[16]  In comparison, we were unable to find a single case in which Gorsuch found that a defendant had satisfied both prongs of Strickland and was entitled to a new trial.

Fifth Amendment – Brady Evidence

Under the Supreme Court’s decision in Brady v. Maryland, prosecutors are required to turn over all exculpatory evidence (evidence that could exonerate the defendant) to the defense.[17] In order to be turned over to the defense, evidence must be “material” to either guilt or punishment.

Gorsuch has rejected most of the Brady cases he has addressed on one of three grounds: the materiality of the withheld evidence;[18] the lack of prejudice from the withholding;[19] or the procedural bar of the Brady claim.[20]  However, in one notable case, Gorsuch excoriated prosecutors for failing to disclose emails that would have supported the defendant’s entrapment defense.[21]  While the majority of the Tenth Circuit panel affirmed the conviction in the case, Gorsuch dissented, noting:

“The conviction before us, hanging on the barest of threads and dependant on the omission of exculpatory evidence, is ‘inconsistent with the rudimentary demands of justice.’”[22]

Overall Assessment

The Fifth and Sixth Amendments of the Constitution protect our right to a fair trial.  The presumption of innocence, the bar against double jeopardy, and the right to counsel have worked to ensure that defendants in the American justice system are accorded due process before conviction.  Even in an era where most criminal cases are settled by plea bargaining, these provisions protect defendants who exercise their right to a jury trial.

Gorsuch’s overall record on these issues is mixed.  While he has sometimes shown a willingness to read these provisions strictly, protecting defendant’s rights, he has also shown a tendency to excuse government errors in producing exculpatory documents, and the deficient performance of counsel.  Overall, while he is unlikely to be the champion of criminal procedural rights Justice Scalia was, there is no reason to believe that a Justice Gorsuch would bring a prosecutorial bias to the bench.

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

[1] See Evans v. Michigan, 133 S.Ct. 1069, 1074, 185 L.Ed.2d 124 (2013).

[2] See Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 679, 7 L.Ed.2d 629 (1962) (per curiam).

[3] See Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

[4] Wood v. Milyard, 721 F.3d 1190, 1195 (10th Cir. 2013).

[5] United States v. Christie, 717 F.3d 1156, 1172 (10th Cir. 2013).

[6] See United States v. Bergman, 746 F.3d 1128, 1131 (10th Cir. 2014).

[7] See United States v. Mendivil, 208 F. App’x 647, 650 (10th Cir. 2006).

[8] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.E.2d 694 (1963).

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

[10] Matthews v. Workman, 577 F.3d 1175, 1188 (10th Cir. 2009).  See also Littlesun v. Parker, 380 F. App’x 758, 761 (10th Cir. 2010).

[11] United States v. Benard, 680 F.3d 1206, 1215 (10th Cir. 2012) (Gorsuch, J., concurring in part and dissenting in part).

[12] See id.

[13] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.E.2d 674 (1984).

[14] See id.

[15] See, e.g., Chavez v. Franco, 609 F. App’x 527, 528–29 (10th Cir. 2015); United States v. Hendrix, 571 F. App’x 661, 663 (10th Cir. 2014); United States v. Goodwin, 541 F. App’x 851, 853 (10th Cir. 2013); United States v. Summers, 539 F. App’x 877, 880 (10th Cir. 2013); United States v. Diaz, 500 F. App’x 798, 799 (10th Cir. 2012); Jones v. Hartley, 366 F. App’x 964, 965 (10th Cir. 2010); Williams v. Zavaras, No. 09-1518, 2010 WL 653320, at *2 (10th Cir. Feb. 24, 2010).

[16] See, e.g., Wickham v. Friel, 299 F. App’x 813, 817 (10th Cir. 2008); United States v. Cervantes, 267 F. App’x 741, 743–44 (10th Cir. 2008); United States v. Golden, 255 F. App’x 319, 322–23 (10th Cir. 2007); United States v. Mullane, 226 F. App’x 810, 813 (10th Cir. 2007).

[17] Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.E.2d 215 (1963).

[18] See, e.g., Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir. 2012).

[19] See, e.g., United States v. Rivera, 478 F. App’x 509, 511 (10th Cir. 2012).

[20] See, e.g., Smith v. Addison, 373 F. App’x 886, 889 (10th Cir. 2010).

[21] United States v. Ford, 550 F.3d 975 (10th Cir. 2008).

[22] Id. at 995 (Gorsuch, J., dissenting) (quoting Brady v. Maryland) (internal quotation marks omitted).

Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part Five – Bivens and 1983

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

During an interview given over the weekend, Judge Harris Hartz of the Tenth Circuit Court of Appeals, a colleague of Judge Neil Gorsuch, described the latter as respecting “limits on [government] power.”[1]  However, in most cases challenging the deprivation of constitutional rights by the government, Gorsuch has found himself on the government’s side.

42 U.S.C. § 1983 allows individuals whose rights have been violated to sue responsible state officials.[2]  Similar to §1983, the Supreme Court’s decision in Bivens v. Six Unknown Named Agents allows individuals to sue federal actors who have violated their rights under color of law.[3]  Suits under §1983 and Bivens must be relatively circumscribed in scope.  Such actions can only be brought against individual actors, and not against the state in general.[4]  You cannot recover unless the state actor, in depriving your rights, have acted “under color of law.”[5]  In other words, the actions of rogue actors acting outside the law cannot be subject to Bivens or §1983 liability.  Additionally, such actions do not extend to the conduct of private actors contracting with the government.[6]  Even given the rules constraining Bivens and §1983 actions, Gorsuch’s record on such suits stands out as government-friendly.

In his twelve years on the Tenth Circuit, Gorsuch has voted to dismiss Bivens and §1983 cases over 60 times, while only voting to grant in a handful of cases.[7]  In many of these cases, Gorsuch declined to reach the merits of the suits, dismissing for failure to exhaust administrative remedies,[8] failure to plead sufficient facts or connection,[9] and sovereign immunity.[10]

In other cases, Gorsuch has dismissed suits under the doctrine of “qualified immunity.”  Qualified Immunity protects state actors who violate the law in depriving individuals of constitutional rights, provided that the law violated is not “clearly established.”[11]  However, the doctrine has rapidly expanded to protect state actors even in cases where their conduct is clearly unlawful, as long as there is no apposite case expressly forbidding it.[12]  For his part, Gorsuch has invoked qualified immunity broadly, protecting state and federal actors from suit over unlawful conduct.[13] 

In one notable example, Gorsuch found that an officer who fired a taser gun at an individual’s head (against training) was nonetheless entitled to qualified immunity.[14]  In dismissing the suit against him, Gorsuch noted that qualified immunity should “protect from civil liability for damages all officers except the plainly incompetent or those who knowingly violate the law. (internal quotation marks omitted).”[15]  His decision sparked separate opinions by both of his fellow panel members.  In her dissent, Judge Mary Briscoe noted that the application of qualified immunity was a mistake, noting that it was clearly established that “it is excessive to use a Taser to control a target without having any reason to believe that a lesser amount of force—or a verbal command—could not exact compliance.”[16]  In his own concurrence, Judge Scott Matheson noted there was “a constitutional violation in this case”,[17] while agreeing with Gorsuch on the dismissal of the case.

In another case, Judge Carlos Lucero wrote for a Tenth Circuit panel rejecting qualified immunity for police officers who unreasonably delayed a defendant’s arraignment.[18]  Gorsuch dissented from the decision, arguing that, while it is clearly established that the Fourth Amendment protects the right to a timely arraignment, the contours of such a right are not clearly established.[19]

Gorsuch has sided with §1983 plaintiffs in one notable case.  In Browder v. City of Albuquerque, Gorsuch held that an officer who collided with a car while speeding through a red light was not entitled to qualified immunity.[20]  Nevertheless, Gorsuch wrote a concurrence to his own opinion in the case, decrying the use of a §1983 action in the case, and arguing that state tort law would have adequately remedied the plaintiffs.[21]

Looking at Gorsuch’s Bivens and §1983 jurisprudence, it is difficult to see a commitment to check government power.  Rather, the record suggests that Gorsuch sees §1983 as limited to rare and extraordinary circumstances, and that most, if not all, constitutional violations are shielded by qualified immunity.  To be fair to Gorsuch, he is not the only judge to take an expansive view of qualified immunity.[22]  Nevertheless, given the media narrative on Gorsuch’s willingness to limit government power,[23] such a willingness does not extend to individuals whose rights have been wrongly deprived.

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

[1] Zoe Tillman, A Federal Judge Offers A Behind-the-Bench Look at Trump’s First Supreme Court Nominee, BuzzfeedNews, Mar. 19, 2017, https://www.buzzfeed.com/zoetillman/judge-offers-a-behind-the-bench-look-at-trumps-supreme?utm_term=.hxbaP7R7py#.lqk2MJ1Jvo (quoting Judge Harris Hartz).

[2] See 42 U.S.C. § 1983 (West) (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”).

[3] Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397, 91 S. Ct. 1999, 2005, 29 L. Ed. 2d 619 (1971).

[4] See, F.D.I.C. v. Meyer, 510 U.S. 471, 472, 114 S. Ct. 996, 999, 127 L. Ed. 2d 308 (1994) (declining to extend Bivens to cover federal agencies).

[5] See West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254–55, 101 L. Ed. 2d 40 (U.S. 1988) (“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.”).

[6] See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63, 122 S. Ct. 515, 517, 151 L. Ed. 2d 456 (2001).

[7] Compare In re Estate of Bleck ex rel. Churchill, 643 F. App’x 754, 757 (10th Cir. 2016) (rejecting excessive force claim brought against police officer) with Riddle v. Hickenlooper, 742 F.3d 922, 930 (10th Cir. 2014) (holding that Colorado’s restrictions on campaign financing violates the Equal Protection Clause).

[8] See Farris v. Frazier, 599 F. App’x 851 (10th Cir. 2015), cert. dismissed, 136 S. Ct. 833, 193 L. Ed. 2d 703 (2016).

[9] See Jones v. Kansas, 572 F. App’x 648, 649 (10th Cir. 2014); Crabtree v. Oklahoma, 564 F. App’x 402, 404 (10th Cir. 2014).

[10] See Johnson v. Oklahoma Dep’t of Transp., 645 F. App’x 765, 768 (10th Cir. 2016).

[11] David French, Another Federal Court of Appeal Attacks the Second Amendment, Nat’l Rev., Mar. 20, 2017, http://www.nationalreview.com/article/445909/andrew-scott-case-second-amendment-attacked-eleventh-circuit-appeals-court.

[12] See id.

[13] See, e.g., Pippin v. Elbert Cty., Colorado, 604 F. App’x 636, 637 (10th Cir. 2015); Hernandez v. Story, 459 F. App’x 697, 698 (10th Cir. 2012); Aragon v. City of Albuquerque, 423 F. App’x 790, 794 (10th Cir. 2011).  

[14] Wilson v. City of Lafayette, 510 F. App’x 775, 780 (10th Cir. 2013).

[15] Id.

[16] Id. at 787 (Briscoe, J., concurring in part and and dissenting in part).

[17] Id. At 792. (Matheson, J., concurring).

[18] Webb v. Thompson, 643 F. App’x 718, 723-24 (10th Cir. 2016).

[19] See id. at 725 (Gorsuch, J., concurring in part and dissenting in part).

[20] See Browder v. City of Albuquerque, 787 F.3d 1076 (10th Cir. 2015).

[21] See id. At 1085 (Gorsuch, J., concurring) (“…there’s little reason to think state courts would fail to fulfill their oaths to see justice done in this case…”).

[22] See White v. Pauly, 580 U.S. __ (2017) (per curiam) (reversing the denial of qualified immunity to officers who entered a home without identifying themselves as police officers and killed the residents who attempted to defend themselves).

[23] See, e.g., Nina Totenberg, Trump’s Supreme Court Nominee Skeptical of Federal Agency Power, Nat’l Pub. Radio, Mar. 17, 2017, http://www.npr.org/2017/03/17/520310365/trumps-supreme-court-nominee-skeptical-of-federal-agency-power.  

Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part Four – Standing

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

Today, the Senate Judiciary Committee will begin its consideration of Judge Neil Gorsuch’s nomination to the Supreme Court.  The first day of the hearing will include detailed opening statements by all Senators on the Committee, as well as the individuals introducing the nominee, and Gorsuch himself.[1]  In their statements, Senators will likely reference the U.S. Constitution, the importance of the Supreme Court, and their view on the proper role of a judge.  They may also reference the failed nomination of Judge Merrick Garland, as well as hot-button legal issues, including the constitutional right to privacy, the scope of the Second Amendment, and the government’s ability to regulate money in politics.  However, there is one important legal concept that is unlikely to be addressed: standing.

While standing, and its related doctrines of ripeness and mootness draw little attention in the media, they are nonetheless crucial for litigants.  Article III of the Constitution requires any person filing suit to meet three requirements to have standing to sue.[2]  They must have suffered an “injury in fact,” the injury must be causally connected to the offending conduct, and the injury must be “redressable” by the court.[3]  When these requirements are interpreted narrowly, plaintiffs can find themselves unable to access courts to protect their rights.  When they are interpreted broadly, courts can be overburdened with vexatious litigation.[4]  As such, Gorsuch’s views on standing will have an important impact on access to courts across the country.

Gorsuch’s Record on Standing

Determining Gorsuch’s views on standing is difficult given the relatively few opinions on the subject he has written.  While Gorsuch has voted numerous times to reject plaintiffs’ claims of standing in civil cases, many of these opinions are brief and unpublished.[5]  However, the handful of cases in which Gorsuch analyzes standing suggest that he takes a relatively narrow interpretation of the doctrine.

In re Krause involved a government suit against a Chapter 7 debtor, seeking a tax lien against assets fraudulently hidden in trusts.[6]  Among other claims, Gorsuch rejected a challenge by the debtor’s children to the government action, arguing that they lacked “prudential standing.”[7]  In ruling so, Gorsuch notes that, while the amended bankruptcy code no longer restricts standing to “persons aggrieved” in bankruptcy proceedings, courts can adopt a stricter standard for policy reasons.[8]  Specifically, Gorsuch notes:

“…without such a requirement [of prudential standing], bankruptcy litigation could easily ‘become mired in endless appeals brought by a myriad of parties who are indirectly affected by every bankruptcy court order.’”[9]

In another case, Gorsuch rejected, on standing grounds, a suit against a defendant who engaged in fraudulent financial schemes by the shareholders in an injured corporation; Judge Gorsuch specifically argued that the corporation itself is the only entity given statutory standing by Colorado law.[10]

However, Gorsuch has also found that standing has been met in one notable case.  Writing for a majority of six judges in an en banc case, Gorsuch ruled that Indian tribes who are required to undergo a second round of state permitting before mining on their property have suffered an “injury in fact” sufficient to give them standing.[11]  In his opinion, Gorsuch rejected government arguments to the contrary, stating that a second round of state permitting would impose “additional administrative costs” on the tribes, thereby injuring them.[12]

Gorsuch’s Record on Ripeness and Mootness

The twin doctrines of ripeness and mootness work alongside standing to ensure that federal courts address only “cases and controversies.”.  A case is ripe for judicial review when it is “appropriate for th[e] case to be litigated in federal court by these parties at this time.”[13] Gorsuch has a relatively thin record on addressing ripeness issues.  In United States v. Pope, Gorsuch rejected a Second Amendment challenge to a conviction for possession of a gun brought by the defendant, arguing that the challenge was not ripe for judicial review.[14]  Specifically, Gorsuch noted that “the material facts on which Mr. Pope’s motion to dismiss relies are outside the indictment, hotly disputed by the government, and intimately bound up in the question of Mr. Pope’s guilt or innocence.”[15]  As such, Gorsuch states, the resolution of his claim must wait until the conclusion of the criminal trial.

A case is moot where the court is unable to redress the plaintiff’s injury, even if the injury was redressable when the suit began.[16]  For his part, while Gorsuch has not been hesitant in dismissing cases as moot,[17] he has also been willing to rejected mootness arguments and keep cases alive.  In one case, Gorsuch sided with abortion rights groups challenging a licensing scheme in Oklahoma permitting residents to place a “Choose Life” message on their license plates, while imposing more onerous requirements on pro-choice messages.[18]  In siding with the abortion rights groups, Gorsuch emphasized that the state’s revision of its licensing process to permit pro-choice messages did not “moot” the proceedings, because the process still imposed a viewpoint-based burden.[19]  In another case, Gorsuch held that the parents of a disabled child could bring suit against a school district under the Individuals with Disabilities Education Act (IDEA) and that the suit was not mooted by the child’s aging out of the school system.[20]

Overall Assessment

Over the last thirty years, the Supreme Court has interpreted standing doctrines narrowly, making it more difficult for plaintiffs to find their way into court, while allowing the Court to avoid ruling on the merits of potentially controversial issues.[21]  The Court has also narrowed the use of taxpayer-standing allowing citizens to challenge unconstitutional actions by the government.[22]  So far, there is nothing in Gorsuch’s record suggesting that he would halt or reverse this trend.

Nevertheless, while the standing doctrine isn’t as newsworthy as other issues that the Supreme Court addresses, it is deeply important.  It allows Justices to avoid ruling on the merits of a case, which serves as an important check on judicial power–but also means that plaintiffs are left with no remedy despite claims of injuries or rights violations.  As such, Senators should ask Gorsuch to further flesh out his views on standing.

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

[1] Ed Whelan, The Gorsuch Hearing: Nuts and Bolts, Nat’l. Review, Mar. 17, 2017, http://www.nationalreview.com/bench-memos/445871/gorsuch-hearing-logistics.

[2] Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992).

[3] Id. at 560-61.

[4] Additionally, some commentators accuse judges of using standing issues to avoid addressing the merits of cases.  See, e.g., Gene Nichol, Rethinking Standing, 72 Cal. L. Rev. 68 (1984). Available at: http://scholarship.law.berkeley.edu/californialawreview/vol72/iss1/2.

[5] See, e.g., Rader v. C.I.R., 616 F. App’x 391 (10th Cir. 2015) (rejecting plaintiff’s standing to appeal for failure to allege any personal or direct injury); Muathe v. Fifth Third Bank, 627 F. App’x 732, 734 (10th Cir. 2015) (rejecting standing where plaintiff only alleges harm to nonparties); Backcountry Hunters & Anglers v. U.S. Forest Serv., 612 F. App’x 934, 935–36 (10th Cir. 2015) (rejecting standing for lack of redressability); DeMillard v. No Named Defendant, 407 F. App’x 332, 333 (10th Cir. 2011) (holding that private citizens do not have standing to demand the prosecution of others); Travis v. Park City Police Dep’t, 277 F. App’x 829, 830 (10th Cir. 2008) (rejecting standing in First Amendment challenge to city ordinance where plaintiff does not have any intention of violating the ordinance); Heller v. Quovadx, Inc., 245 F. App’x 839, 840 (10th Cir. 2007) (rejecting plaintiff’s standing to challenge settlement agreement).  Cf. United States v. Castro, 225 F. App’x 755, 757 (10th Cir. 2007) (rejecting criminal defendant’s standing to challenge search of his ex-girlfriend’s apartment).

[6] In re Krause, 637 F.3d 1160, 1162-63 (10th Cir. 2011)

[7] Id. at 1168.

[8] Id.

[9] Id. 

[10] Niemi v. Lasshofer, 728 F.3d 1252, 1261 (10th Cir. 2013).

[11] Hydro Res., Inc. v. U.S. E.P.A., 608 F.3d 1131, 1144-45 (10th Cir. 2010).

[12] Id. at 1145.

[13] Nat’l Advert. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005).

[14] United States v. Pope, 613 F.3d 1255, 1258 (10th Cir. 2010).

[15] Id. at 1257.

[16] Shawnee Tribe v. United States, 423 F.3d 1204, 1212 (10th Cir. 2005).

[17] See, e.g., Wyoming v. U.S. Dep’t of Interior, 587 F.3d 1245, 1247 (10th Cir. 2009) (“Because no such questions remain in this case, we dismiss this appeal as moot, vacate the judgment of the district court, and remand with instructions to dismiss the case for lack of subject matter jurisdiction.”).

[18] Hill v. Kemp, 478 F.3d 1236, 1243 (10th Cir. 2007).

[19] Id. (“[The state’s action] does not diminish the fact that a difference arguably preferring one competing viewpoint over another remains bedded in Oklahoma law.”).

[20] Garcia v. Bd. of Educ. of Albuquerque Pub. Sch., 520 F.3d 1116, 1123 (10th Cir. 2008).

[21] See, e.g., Hollingsworth v. Perry, 570 U.S. __, 133 S. Ct. 2652 (2013) (holding that proponents of ballot measure lacked standing from the measure’s defeat in federal court and, as such, could not appeal the decision).  See also Clapper v. Amnesty Int’l, 568 U.S. __ (2013) (holding that Amnesty International does not have standing to challenge provisions of the Foreign Intelligence Surveillance Act).

[22] See Hein v. Freedom From Religion Found., 551 U.S. 587 (2007) (holding that taxpayers did not have standing to challenge unconstitutional expenditures made by the Executive Branch).