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.

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.

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.

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.

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

“Religious Freedom” is the buzzword of the season.  Both state legislatures^[1] and the Trump Administration^[2] are moving to outline protections for “freedom of conscience,” even when such protections impede other government mandates.  Such measures, if passed, will likely face court challenges, and may, ultimately, be reviewed by the Supreme Court.  As such, Judge Neil Gorsuch, if confirmed, will help define the contours of our religious rights.

Given Gorsuch’s open religiosity,^[3] his views on religious rights have drawn significant media attention and speculation.^[4]  Some argue that Gorsuch’s faith would lead him to broad readings of religious liberty rights, particularly in cases where the exercise of such rights clash with anti-discrimination mandates.^[5]  Others note his membership in a fairly liberal congregation and come to the opposite conclusion.^[6]  While Gorsuch has written extensively on issues of ethics and morality off the bench,^[7] he has relatively few decisions on religious freedom and liberty to his name.  Looking at this small universe of cases, we find that Gorsuch takes a broad view of religious liberty, and, if confirmed, would likely be a champion for expanding the right to “freedom of conscience.”

Protecting “Religious Freedom” Supersedes Other Governmental Interests

Perhaps no opinion of Gorsuch’s elucidates his view of religious liberty as clearly as his opinion in Hobby Lobby Stores Inc. v. Sebelius.^[8]  Hobby Lobby involved a challenge to the contraceptive-coverage requirement under the Affordable Care Act.^[9]  The plaintiffs, the Greens, the owners of a for-profit corporation, maintained religious objections to providing coverage for four FDA-approved contraceptive devices, and sued to strike down the mandate.^[10]  After the District Court denied an injunction, the Tenth Circuit, in an unusual move, decided to hear the case as an en banc court.^[11]  A divided court narrowly found for Hobby Lobby, ruling both that for-profit corporations maintained religious rights,^[12]  and that the Religious Freedom Restoration Act (RFRA) exempted them from the mandate.^[13] 

Gorsuch concurred with the decision, writing separately on the related issue of the Anti-Injunction Act.^[14]  Gorsuch’s opinion, nevertheless, included a powerful defense of the Greens’ claim, and of the expansiveness of RFRA.  In his opinion, Gorsuch described the Greens as unpopular religious minorities who need the protection of RFRA.^[15]  Requiring them to provide contraceptive coverage, he noted, would be requiring them to be complicit in wrongdoing.^[16] 

Gorsuch also laid out an expansive interpretation of RFRA, stating:

“Congress structured RFRA to override other legal mandates, including its own statutes, if and when they encroach on religious liberty.”^[17] 

RLUIPA’s Mandates Do Not Require Accommodation of All Religious Needs

Alongside RFRA, the Religious Land Use and Institutionalized Persons Act (RLUIPA) extends a higher standard of scrutiny to regulations that interfere with the religious freedom of state prisoners.^[18]  In interpreting RLUIPA, Gorsuch has not taken the broad view of religious liberty that he elucidated in Hobby Lobby.  Rather, his views have been more mixed.  While Gorsuch has defended religious freedom rights for prisoners, he has also shown a willingness to reject RLUIPA claims.

Gorsuch has rejected most of the RLUIPA appeals he has heard with fairly little discussion of the scope of the statute and the rights it affords.^[19]  However, he does elaborate on his understanding of RLUIPA in Abdulhaseeb v. Calbone.  Abdulhaseeb involved a challenge to prison policy that denied a Muslim inmate a halal diet.  The Tenth Circuit reversed a lower court ruling dismissing the prisoner’s RLUIPA claims.^[20]  In concurring with the majority opinion, Gorsuch emphasized the limited nature of the court’s decision and RLUIPA’s mandate.^[21]  RLUIPA, Gorsuch noted, applies in cases where prison officials are essentially starving the prisoner by denying him any food that he can eat.^[22]  However, lesser deprivations of religious liberty, such as the denying of meals that fall short of complete deprivation may not necessarily fall afoul of RLUIPA.^[23]

At the same time, Gorsuch laid out a powerful affirmation of the religious rights of prisoners in Yellowbear v. Lambert.  Mr. Yellowbear, a member of the Northern Arapahoe tribe, sought access to the prison sweat lodge for religious exercises.^[24]  The prison refused, citing security concerns, and the Tenth Circuit, in an opinion by Gorsuch, reversed.^[25] 

Gorsuch begins his opinion with a paean to the religious rights of prisoners:

“While those convicted of crime in our society lawfully forfeit a great many civil liberties, Congress has (repeatedly) instructed that the sincere exercise of religion should not be among them…”^[26]

Gorsuch goes on to criticize efforts by judges to parse religious beliefs and exercises.^[27]  Instead, he notes that RLUIPA authorizes only an inquiry into the sincerity of religious beliefs, not into their importance or significance.^[28]  In so finding, Gorsuch rules that the prison must accommodate Mr. Yellowbear’s religious beliefs.

The Establishment Clause Does Not Bar Government Displays of Religion

Gorsuch’s jurisprudence also suggests that he does not consider the Establishment Clause to set up a “wall of separation” between church and state.  Instead, Gorsuch takes an originalist view of the Establishment Clause, turning to understandings of church-state separation from the time of the founding of the Constitution.  Gorsuch has further elucidated this view through a number of dissents from denials of en banc rehearing involving cases where the Tenth Circuit struck down government displays of religious artifacts.  In 2008, Gorsuch dissented from denial of en banc in a decision striking down the display of the Ten Commandments.^[29] In dissent, he argued that “displays of the decalogue alongside other markers of our nation’s legal and cultural history do not threaten an establishment of religion.”^[30] 

Similarly, in 2010, Gorsuch was one of four dissenters from the Tenth Circuit’s decision not to rehear en banc a ruling striking down the display of memorial crosses on public roadsides.^[31]  In that case, Gorsuch joined a broader dissent by Judge Paul Kelly,^[32] as well as dissenting separately.^[33]

Overall Assessment

In his 11 years on the federal bench, Gorsuch has participated in less than fifteen cases involving the Religion Clauses, RFRA, or RLUIPA.  Through these cases, however, Gorsuch has displayed his respect for religious belief, and a commitment to protect it against government regulation.  In cases such as Hobby Lobby and Yellowbear, Gorsuch has written aggressively against government impediments to religious exercise.  Furthermore, Gorsuch has also decried interpretations of the Establishment Clause that take religion out of the public sphere.  As such, Christians who are concerned that their beliefs may be under attack will find comfort in his decisions.

However, it must be noted that Gorsuch does not limit his use of “religious liberty” to Christians alone.  His writings make it clear that even minority religions deserve the protections of RFRA, RLUIPA, and the Free Exercise Clause.  As such, Gorsuch’s opinions could presumably be used to protect the Muslim student seeking to wear a hijab in their place of employment, a Sikh soldier’s right to serve wearing a turban, and a Hindu child’s right to have meat-free alternatives in school.

Nevertheless, Gorsuch’s broad interpretation of RFRA should concern minority groups, including African Americans, and the LGBT community, who have faced religious discrimination.  Taken to the logical extreme, such a broad reading of religious liberty could be used as a “sword” to avoid complying with anti-discrimination laws.  In other words, a businessperson could use their religious beliefs to justify only hiring men in the workplace, or refusing to serve interracial couples at a restaurant, or declining to offer spousal benefits to same-sex couples.  Such an understanding of RFRA could cripple efforts at civil rights enforcement.

Additionally, with both state legislatures and the administration pushing to allow “religious liberty” exemptions to anti-discrimination mandates, judges will likely be called upon to decide cases where both parties claim violations of religious liberty.  For example, in a case involving a Christian employer who seeks to prevent a Muslim employee from praying, arguing that such prayer violates their own faith, it is unclear whose religious rights would triumph.  Gorsuch’s relatively limited jurisprudence on these issues does not yield an answer on his own approach to such a question.

Overall, Gorsuch looks set to lead a significant expansion of the scope of “religious liberty.”  It will be up to the Senate Judiciary Committee to dialogue with Gorsuch to determine the nature and implications of such an expansion.

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

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

Studying Fourth Amendment cases in which Judge Neil Gorsuch has authored a majority opinion, a concurrence, or a dissent, it is my conclusion that Gorsuch enacts a highly disciplined approach to this area of law.  His opinions scrupulously guard the rights of unsympathetic defendants, exhaustively examine the whole corpus of American law to gain an understanding of each case, and go out of their way to ensure that every defendant enjoys the legal protections to which they are entitled at law.  This essay will examine some of the cases I reviewed in arriving at this conclusion.

In U.S. v Carloss, police officers entered the curtilage of the defendant’s home, without a warrant, to conduct a knock and talk, a common police method designed to discover evidence of illegal conduct while talking with whomever answers the door.  In doing so, the officers walked onto the front step of the home, passing numerous “No Trespassing” signs.  Judge David Ebel, writing for the panel majority, found no Fourth Amendment violation from the police “knock and talk.”^[1]  Gorsuch wrote a lengthy dissent, turning to common law at the “the founding” to illustrate why he found this search unreasonable.

In this dissent, Gorsuch noted that the government relied on two theories to support their position.  First, the government “suggest[ed] that its officers enjoy an irrevocable right to enter a home’s curtilage to conduct a knock and talk . . . arguing that . . . the knock and talk is an investigative technique approved by the Supreme Court.”^[2]  Alternatively, they argued that police possess only a revocable right to walk onto the front step and knock on the door, and that “a homeowner may avoid a knock and talk only by hiding in the home and refusing to answer the door.”^[3]

Gorsuch disagreed with both these stances, explaining that “an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment’s protected areas,” and that “[t]he founders understood, too, that a search of a constitutionally protected space generally qualifies as unreasonable when undertaken without a warrant, consent, or an emergency.”^[4]

Judge Gorsuch then, in a nod to his originalist leanings, noted that “the common law at the time of the founding did not require a property owner to express his intent to revoke a license to enter in any particular way. Indeed, all that was traditionally required were express words … or … an act … indicating an intention to revoke.”^[5]  Judge Gorsuch summed up his Carloss dissent with the following words: “Our duty of fidelity to the law requires us to respect all these law enforcement tools. But it also requires us to respect the ancient rights of the people when law enforcement exceeds their limits. In this case the two arguments the government offers to justify its conduct can claim no basis in our constitutional tradition.”^[6]

Other cases reveal a similar fealty to the Fourth Amendment’s original intent. In U.S. v. Krueger, Judge Gorsuch concurred with an opinion rejecting the validity of a warrant issued across jurisdictional boundaries.^[7]  In U.S. v Ackerman, Judge Gorsuch held that the National Center for Missing and Exploited Children acted as an agent of the government in searching Mr. Ackerman’s effects without a warrant, and that their search of a suspected child pornographer violated his constitutional rights.^[8]  In both cases, Judge Gorsuch demonstrated adherence to the law in favor of unsympathetic defendants.

Additionally, in other criminal cases, Gorsuch has shown the capacity to restrain executive overreach.  In U.S. v Cos, Gorsuch dissented from a panel decision affirming the grant of a suppression motion, arguing that the government’s appeal of the motion was untimely.^[9]  Specifically, Gorsuch argued that the government should be required to follow the same rules of timely filing as a habeas petitioner.^[10]  In U.S. v Games-Perez, Gorsuch criticized circuit precedent preventing a defendant who was not aware of his felon status from presenting a mens rea defense.^[11] 

Perhaps no case better illustrates Gorsuch’s skepticism of prosecutorial overreach than his opinion in U.S. v. Rentz.  Rentz involved a question of whether 18 U.S.C. § 924(c)(1)(A) (which prohibits carrying a firearm during a drug-related or violent offence) allows multiple charges from the single use of a firearm.  Gorsuch answered this question in the negative, rebuking government prosecutors for employing syntactical errors to dramatically increase the number of separate charges they could press against a defendant for the single discharge of a firearm.^[12]

Gorsuch interpreted the statute using “plain old grade school grammar, [while] the government’s contrary interpretation require[d] some sophisticated syntactical somersaults,”^[13] piling on additional charges without proving any further uses, carries, or possessions.  Gorsuch accused the government of myopically focusing on the statute’s adverbial phrases “without even a stolen glance at the verbs those phrases modify.”^[14]

Many liberals oppose the nomination of Gorsuch to be on the Supreme Court on various grounds, including skepticism about his willingness to stand up to executive power.  However, taken as a body, Gorsuch’s writings indicate that he will not hesitate to restrain the Executive, defend the Fourth Amendment, and rigorously protect the rights of the accused.

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

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

On May 18, 2016, when Donald Trump released his first list of potential Supreme Court nominees, there was a notable omission: Tenth Circuit judge Neil Gorsuch.^[1]  The omission signaled that Trump was different than previous Presidents: focused on “out of the beltway” candidates and unimpressed by Ivy League credentials.^[2]

Of course, last week, Trump chose Gorsuch for the nomination, bypassing Judge Thomas Hardiman, who worked as a taxi driver to pay for law school, and Judge William Pryor, who dedicated his entire life to government service.  In his announcement speech, Trump emphasized Gorsuch’s intelligence and qualifications, while downplaying the nominee’s privileged background.  Nevertheless, to understand the kind of justice Gorsuch will be, it is necessary to look not just at his judicial record, but at his legal career before he took the bench.

Childhood and Education

Neil McGill Gorsuch was born in Denver, Colorado on Aug. 29, 1967.  Gorsuch’s mother, Anne Gorsuch Burford, was a prominent Colorado Republican who served in the legislature in the mid-1970s.  In 1981, Burford was confirmed to serve as President-elect Reagan’s EPA Administrator.^[3]  Gorsuch moved to D.C. with his mother shortly after and grew up in the Beltway, attending Georgetown Preparatory School.  He went on to Columbia University and attended Harvard Law School on a Truman scholarship.  While at Harvard, Gorsuch served as a summer associate in a number of prominent law firms, including Davis, Graham & Stubbs, Cravath, Swaine & Moore, and Sullivan & Cromwell.

Legal Career

After graduation, Gorsuch clerked for conservative Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit.  He went on to Supreme Court clerkships with Justices Byron White and Anthony Kennedy.  After his clerkships, Gorsuch spent ten years in the Washington D.C. office of Kellogg, Huber, Hansen, Todd, Evans & Figel (“Kellogg”), the last seven as a partner.  During this time, Gorsuch also attended University College, Oxford, getting a Doctorate of Philosophy for his research on assisted suicide and euthanasia.

At Kellogg, Gorsuch participated in several prominent contracts, RICO, and securities cases.  In 2002, Gorsuch led his client, Conwood, to the then largest private damages award in antitrust litigation, securing a $1.05 billion judgment against United States Tobacco Company.^[4]  Furthermore, Gorsuch was one of the lead attorneys in two cases that secured the rights of dissenting class members to appeal the approval of a class action settlement.^[5]

During his time at Kellogg, Gorsuch occasionally penned articles on legal issues.  In 2004, he published an article exploring the legality of assisted suicide.^[6]  In Feb. 2005, Gorsuch wrote for the National Review, opining that liberal activists were using the courts to move on policy issues that they were unable to win in the political sphere.^[7]

In 2005, Gorsuch was hired to be Principal Deputy to Assistant Attorney General Robert McCallum.  In that role, he helped manage the work of the Department of Justice, focused on the Antitrust, Civil, Civil Rights, Environment, and Tax Divisions.  In this role, Gorsuch reviewed briefs, decided which cases should be filed and settled, and implemented various civil justice initiatives.

Nomination and Confirmation

On May 10, 2006, Gorsuch was nominated by President George W. Bush for a Colorado seat on the Tenth Circuit Court of Appeals.  Gorsuch received a cursory hearing on June 21, 2006, with only Senator Lindsay Graham present from the committee.^[8]  While Gorsuch was questioned about his writings on assisted suicide,^[9] there was no objection to his nomination in committee.  Gorsuch was confirmed by the Senate in a voice vote without opposition on July 20, 2006, a mere two months after his nomination.

Shortly after his confirmation, Gorsuch’s first book, The Future of Assisted Suicide and Euthanasia, was published by Princeton University Press.^[10]  The book elaborates on Gorsuch’s previous writings, laying out his opposition to the legalization of physician assisted suicide.^[11]  Specifically, Gorsuch criticizes the arguments in support of assisted suicide and argues that the intentional ending of human life is morally wrong.^[12]

Drawing Conclusions

It is stating the obvious to note that, as a white male, Judge Gorsuch does not add gender or racial diversity to the Supreme Court.  However, what is more notable is that Judge Gorsuch’s experience and credentials are very similar to that of another justice serving on the court: Chief Justice John Roberts.  Gorsuch, like Roberts, is a graduate of Harvard Law School.  Roberts and Gorsuch both spent much of their careers in Big-law practice, with short stints in the federal government.  Additionally, Gorsuch, like Roberts, spent most of his professional life in Washington D.C., only moving to Colorado upon his confirmation to the Tenth Circuit.

However, unlike Roberts, who endured a long, protracted confirmation, Gorsuch was confirmed with hardly any debate or fanfare.  Despite his conservative credentials,^[13] and his youth, Gorsuch found support from every single Democrat in the Senate.  The two months from nomination to confirmation for Gorsuch is particularly astounding given the extended delays many later nominees faced.  While some of this is attributable to a less contentious time in confirmation politics, another factor is the relatively slim paper trail the nominee then possessed.  Other than a handful of law review articles and editorials, most focused on assisted suicide, Gorsuch had published little, and as such, had said little to attract opposition.

This will not be the case for his current confirmation.  Gorsuch has ten years of opinions for critics to dig through to find objectionable material.  Nevertheless, Gorsuch’s corporate background, and smooth confirmation to the Tenth Circuit speaks to his likely elevation, and suggests that, as a justice, he would be a conservative in Roberts’ mold.

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